LOAN AGREEMENT
between
CENTURY CASINOS AFRICA (PROPRIETARY) LIMITED
and
CALEDON CASINO BID COMPANY (PROPRIETARY) LIMITED
and
CALEDON OVERBERG INVESTMENTS (PROPRIETARY) LIMITED
and
CENTURY CASINOS INC. (for purposes of clause 14.6 only)
1 INTERPRETATION
In this agreement, clause headings are for convenience and shall
not be used in its interpretation and, unless the context
clearly indicates a contrary intention, -
1.1 an expression which denotes -
1.1.1 any gender includes the other genders;
1.1.2 a natural person includes an artificial or juristic person
and vice versa;
1.1.3 the singular includes the plural and vice versa;
1 .2 the following expressions shall bear the meanings assigned
to them below and cognate expressions bear corresponding
meanings -
1 .2.1 "Century advance date" - the first business day after the date on
which the suspensive conditions are fulfilled;
"COIL advance date" - the date on which transfer of the
properties into the name of the borrower is registered
in terms of the business agreements;
1.2.2 "the/this agreement" - the loan agreement as set out herein together
with all
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annexures hereto;
1.2.3 "borrower" - Caledon Casino Bid Company (Proprietary) Limited,
a private company with limited liability duly incorporated in
the Republic of South Africa with registration number
1996/010708/07;
1.2.4 "business day" - any day on which registered commercial banks in the
Republic of South Africa transact banking business;
1.2.5 "business sale agreement" - the written sale of business agreement to
be entered into between the borrower, the lenders and Xxxxxxxxxx
Country Hotel & Spa (Proprietary) Limited at more or less the same
time as the conclusion of this agreement;
1.2.6 "capital" - the total amount to be lent and advanced by each of the
lenders to the borrower in terms of this agreement, being an amount
of R15 000 000 (ie an aggregate amount of R30 000 000);
1.2.7 "Century" - Century Casinos Africa (Proprietary) Limited, a private
company with limited liability duly incorporated in the
Republic of South Africa, with registration number 1996/010501/07;
1.2.8 "Century Inc." - Century Casinos Inc. a company incorporated in the
United States of America, being the ultimate holding company
of Century;
1.2.9 "loan" - the loan to be made by each of the lenders to the borrower in
terms of this agreement;
1.2.10 "prime rate" - the publicly quoted annual prime/base rate of interest
levied from time to time by the commercial bankers of Century Casinos
Inc in the USA on the unsecured overdrawn current accounts of its
most favoured corporate customers in the private sector (as certified
by any manager of that bank, whose authority and/or Appointment
and/or qualifications need not be proved);
1.2.11 "properties" - the fixed properties to be transferred to the
borrower in terms of and pursuant to the business
agreements;
1.2.12 "rental enterprise sale agreement" - the written sale of a rental
enterprise agreement to be entered into between the borrower, the
lenders and Caledon Hotel Spa and Casino Resort (Proprietary)
Limited at more or less the same time as the conclusion of this
agreement;
1.2.13 "signing date" - the date that this agreement is signed by the party
signing last in time;
1.2.14 "subscription agreement" - the written subscription agreement to be
entered into between the borrower and the lenders at more or less
the same time as the conclusion of this agreement;
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1.2.15 "suspensive conditions" - the suspensive conditions set out in 3;
1.2.16 "COIL" - Caledon Overberg Investments (Proprietary) Limited,
a private company with limited liability duly incorporated
in the Republic of South Africa, with registration number
96/06728/07;
1.2.17 "lender" - COIL and/or Century, as the context may indicate;
1.2.18 "the business agreements" - the rental enterprise agreement and the
business sale agreement;
1.2.19 "advance date" - the Century advance date and/or the COIL advance
date, as the context may indicate;
1.3 any reference to any statute, regulation or other legislation shall
be a reference to that statute, regulation or other legislation as
at the signature date, and as amended or substituted from time
to time;
1.4 if any provision in a definition is a substantive provision
conferring a right or imposing an obligation on any party
then, notwithstanding that it is only in a definition, effect shall
be given to that provision as if it were a substantive
provision in the body of this agreement;
1.5 where any term is defined within a particular clause other than
this 1, that term shall bear the meaning ascribed to it in that
clause wherever it is used in this agreement;
1.6 where any number of days is to be calculated from a particular day,
such number shall be calculated as excluding such particular day
and commencing on the next day. If the last day of such number so
calculated fails on a day which is not a business day, the last
day shall be deemed to be the next succeeding day which is a
business day;
1.7 any reference to days (other than a reference to business days),
months or years shall be a reference to calendar days, months or
years, as the case may be;
1.8 any term which refers to a South African legal concept or process
(for example, without limiting the aforegoing, winding-up or
curatorship) shall be deemed to include a reference to the
equivalent or analogous concept or process in any other
jurisdiction in which this agreement may apply or to the laws of
which a party may be or become subject;
1.9 the use of the word "including" followed by a specific example/s
shall not be construed as limiting the meaning of the general
wording preceding it and the eiusdem generis rule shall not be
applied in the interpretation of such general wording or such
specific example/s.
The terms of this agreement having been negotiated, the contra proferentem
rule shall not be applied in the interpretation of this agreement.
2 INTRODUCTION
2.1 The borrower wishes to borrow money from the lenders and the
lenders have agreed to make such funds available to the
borrower on the terms and conditions set out herein.
2.2 This loan agreement sets out the terms and conditions on which the
loans will be made by the lenders to the borrower.
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3 SUSPENSIVE CONDITIONS
3.1 This agreement, in its entirety, is subject to the suspensive
conditions that -
3.1.1 the subscription agreement is signed by the parties thereto
contemporaneously with the execution of this agreement;
3.1.2 the business agreements are signed by the parties thereto
contemporaneously with the execution of this agreement.
3.2 The suspensive conditions are stipulated for the benefit of the
lenders who shall jointly be entitled, in writing only, to waive
fulfillment of same or to extend the date by which they or
any of them is to be fulfilled.
3.3 If any of the suspensive conditions is not fulfilled and is not
waived, then this agreement shall automatically lapse and be
of no further force or effect and -
3.3.1 to the extent that this agreement may have been partially
implemented, the parties shall be restored to the status
quo ante, which will specifically be deemed to include
(but not be limited to) the borrower repaying any and all
amounts already advanced to it by the lender together with
interest thereon in accordance with 5, which payment shall be
effected forthwith, but in any event by no later than a date
three days after the date on which this agreement has so lapsed;
and
3.3.2 no party shall have any claim against the other arising out of
or in connection with this agreement save in terms of 3.3.1.
3.4 The parties undertake to take all reasonable steps as expeditiously
as possible in order to ensure fulfillment of the suspensive
conditions and to give effect to the provisions of this
clause 3.
4 LOAN AND ADVANCE OF CAPITAL
4.1 Century hereby undertakes to lend and advance R15 000 000
(fifteen million rands to the borrower in the manner set out in
4.3 and otherwise on the terms and conditions set out in this
agreement, and the borrower hereby accepts such loan.
4.2 COIL hereby undertakes, in accordance with the provisions
of the business agreements, to lend and advance R5 500 000
to the borrower in the manner set out in 4.3 and otherwise on
the terms and conditions set out in this agreement, and the
borrower hereby accepts such loan.
4.3. On the Century advance date, Century shall advance to the borrower
the capital, and on the COIL advance date COIL shall advance to the
borrower R5 500 000 (five and one half million rand), provided
that as at such advance dates -
4.3.1 the subscription agreement, the rental enterprise sale agreement
and the business sale agreement are of full force and
effect;
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4.3.2 the borrower is not in breach or default of any of its obligations in
terms of this agreement and/or any of the agreements referred to
in 4.2.1;
4.4 All warranties and representations set out herein are true and
correct and are not misleading in any way and the borrower is not in
breach of any such warranty and/or representation.
4.5 The loan and any amount outstanding in terms thereof shall under
all circumstances be denominated in, the capital be advanced and
made available as and all repayments be effected in South
African Rand.
4.6 COIL hereby represents to the other parties that, as at the
signature date and as certified by the certificate issued by
COIL's auditors dated 30 March 2000, COIL has already lent and
advanced an amount of R9 500 000 to the borrower (to which loan
the terms and conditions of this agreement shall also apply) and,
accordingly, once the advance referred to in 4.2 has been made, the
borrower shall be indebted to COIL in an aggregate amount of
R15 000 000.
5 INTEREST
5.1 The capital outstanding from time to time (together with an
interest that may have accrued thereon from time to time)
shall bear interest, as from the advance dates to the date of
actual repayment in full, at such interest rate as the parties
may from time to time agree upon in writing, provided that the
interest rate shall in no circumstances be lower than the
prime rate plus 2%.
5.2 The interest referred to in 5.1 shall -
5.2.1 be calculated monthly in arrear on the capital amount
and all previously accrued interest outstanding as at; and
5.2.2 to the extent not paid in terms of 6.1.1, be capitalised and
compounded monthly in arrear on, the last day of each end every
calendar month commencing with the month in which the advance date
falls.
6 REPAYMENT
6.1 Subject to 9 -
6.1.1 an amount equal to 30% of the interest accruing in terms of
5 during any month (or such higher minimum amount as the parties may
from time to time agree upon in writing) shall be paid by the
borrower to the lender on the last day of each and every calendar
month commencing with the month in which the advance date falls;
and
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6.1.2 the capital outstanding (together with all interest that may have
accrued thereon from time to time in terms of 5 and that is not paid
in terms of 6.1.1) shall be credited to the lender's loan
account in the books of the borrower and shall be repaid by the
borrower to the lender within five business days after receipt by
the borrower of written demand thereof or by the lender.
6.2 The amounts due to the lender in terms of this agreement
shall notwithstanding anything to the contrary herein
contained, be repaid on the granting of an order (whether
provisional or final) of liquidation or judicial management of the
borrower.
6.3 Should the borrower fail to make full or timeous payment of any
amount due in terms of this agreement on the due date, it
shall pay penalty interest on the unpaid amount, calculated from
the due date to the date on which the unpaid amount is actually
paid in full at a rate of 2% above the publicly quoted annual
prime rate of interest levied from time to time by the lender's
commercial bankers in Cape Town on the unsecured overdrawn current
accounts of its most favoured corporate customers in the private
sector (as certified by any manager of that bank, whose authority
and/or appointment and/or qualifications need not be proved), which
penalty interest shall be calculated, capitalized and compounded
monthly in arrear.
6.4 Should the borrower be required by law to effect any payment in
terms of this agreement subject to the deduction or
withholding of any amount -
6.4.1 the borrower shall forthwith notify the lender thereof in writing; and
6.4.2 the amount payable by the borrower in respect of which such deduction
or withholding is required to be made shall be increased to the extent
necessary so as to ensure that, after the making of the relevant
deduction or withholding (and taking into account any further
deduction or withholding on the increased payment), the lender
receives and retains (ties from any liability In respect of any
such deduction or withholding) a net sum equal to the amount which
it would have received and so retained had no such deduction or
withholding been made or required to be made;
6.4.3 the borrower shall pay the full amount so required to be deducted or
withheld to the relevant authority or other entity concerned
within the time allowed for such payment under applicable law end
shall deliver to the lender, within ten days after having made
such payment, an original receipt (or a certified copy thereof)
issued by such authority or other entity evidencing the payment to
such authority or other entity of all amounts so required to be
deducted or withheld.
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7 PAYMENTS
7.1 All payments made by the borrower to the lender in terms
of the provisions of this agreement shall be made in cash,
without the cost of the transfer of funds in the Republic
of South Africa and without deduction or set-off whatsoever,
in South African Rand -
7.1.1 by way of a bank draft payable to the lender or its order and
drawn on a registered bank in the Republic of South Africa;
or
7.1.2 if so elected by the lender, by payment directly into the bank
account of the lender or its nominee, in accordance
with the written payment instructions of the lender.
7.2 Where any payment due to be made by the borrower to the lender
in terms of this agreement falls due on a day which is not
a business day, then such payment shall be made on the last
business day preceding such day.
8 REPRESENTATIONS AND WARRANT1ES
8.1 The borrower hereby represents and warrants to the lender
and this agreement is accordingly based thereon that, as at the
signature date and as at the date this agreement become
effective -
8.1.1 it is validly incorporated and existing as a private company
in the Republic of South Africa;
8.1.2 it has the necessary legal capacity to enter into and
perform its obligations under this agreement and has taken
all necessary corporate and/or internal action to authorize
the execution arid performance of this agreement;
8.1.3 in the execution of this agreement and the performance by it
of its obligations hereunder, it will not contravene any law or
regulation to which the borrower is subject or any provision
of the memorandum and/or articles of association of the
borrower;
8.1.4 no litigation or administrative proceedings before any
court or governmental authority is pending or threatened
against the borrower or any of its assets;
8.1.5 all financial and other information furnished by it to the
lender and/or pertaining to it and furnished to the lender,
whether in terms of or pursuant to this agreement or otherwise,
is true, correct and not misleading in any way whatsoever;
8.1.6 it is fully solvent, is in a position to pay its debts and
other obligations as and when they fall due in the normal
course of business and that there has been no material
adverse change in the financial position of the borrower since
the date of the last financial information furnished to the
lender;
8.1.7 it has disclosed to the lender in writing all facts and
circumstances which could reasonably be regarded as material
to the lender in entering into this transaction.
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8.2 The parties hereby agree that -
8.2.1 the warranties shall also be deemed to be representations
and undertakings by the borrower in favour of the lender;
8.2.2 each warranty shall also conclusively be deemed to be a
representation of fact inducing the lender to enter into this
agreement and to advance money to the borrower hereunder;
8.2.3 each warranty shall be deemed to be material;
8.2.4 insofar as any of the warranties is promissory or relates to a
future event, same shall be deemed to have been given as at the
due date for fulfillment of the promise or for the happening
of the event, as the case may be;
8.2.5 each warranty shall be a separate warranty and in no way be
limited or restricted by reference to or inference from the
terms of any other warranty; and
8.2.6 all matters are warranted and all warranties shall be deemed
to have been given as at the signing date and as at
the advance date.
9 BREACH
If any of the following events, each of which shall be
severable and distinct from the others of them, shall
occur, namely if -
9.1 the borrower commits an act which would be an act of insolvency
mutates mutandis within the meaning of section 8 of the
Insolvency Act, 1936, as amended, had it been committed by
a natural person; or
9.2 the borrower commits a breach of any term or condition
of this agreement; or
9.3 - the borrower defaults in the due payment of any amount payable
under this agreement; or
9.4 any asset of the borrower is attached under writ of
execution; or
9.5 the borrower is provisionally or finally, and whether
voluntary or compulsory, placed under judicial management
or wound up or deregistered; or
9.6 the borrower enters into a compromise, composition or
arrangement with its creditors, or any major creditors; or
9.7 the borrower ceases to carry on its business in a normal and
regular manner or materially changes the nature of its
business; or
9.8 the performance of either party's obligations in terms of this
agreement becomes illegal; or
9.9 any of the representations and/or warranties made and repeated
by the borrower in terms of this agreement is untrue or
is misleading; or
9.10 the borrower commits a breach of any term or condition or
defaults on any of its obligations in terms of any other
agreement to which it is a party; or
9.11 the subscription agreement and/or the rental enterprise sale
agreement and/or the business sale agreement be cancelled
or terminated for any reason whatsoever,
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and should such event be incapable of remedy in the reasonable
opinion of the lender (which shall, without limitation, be
deemed to be the position if the event is one envisaged in
9.1, 9.4, 9.5 and/or 9.6), or should such event be capable of
remedy and the borrower should fail to remedy or procure the remedy
of the same in the case of non-payment of any amount within
three days after receipt of written notice thereof, or in the case
of any other breach that can be remedied, within ten days after
receipt of written notice thereof (or such longer period as the
lender may reasonably consider necessary in the
circumstances), then in any of the aforesaid events, the lender
shall have the right, without prejudice to any other rights
which may be available to it in terms of this agreement or in law,
to immediately claim repayment of the capital together with all
accrued but unpaid interest, costs and other losses flowing from
the relevant event and the borrower shall make much payment. In
addition thereto, the lender xxxXx be entitled (but not obliged)
to terminate and cancel (without incurring any liability on
its part by doing so) the subscription agreement, the property
sale agreement and the business sale agreement on written
notice to such effect to all the other parties thereto.
10 CERTIFICATE OF INDEBTEDNESS
A certificate under the hand of any director (whose appointment
it shall not be necessary to prove) for the time being of the
lender as to any indebtedness of the borrower under or in terms
of or to any other fact relating to or connected with this
agreement shall be prima facie proof of the borrower's
indebtedness, or such other fact stated therein for the
purpose of provisional sentence or other judgment proceedings.
11 INFORMATION ABOUT THE BORROWER
11.1 As long as the borrower is indebted in any way to the
lender, the borrower shall furnish the lender with all
audited financial statements of the borrower and/or with
such other management accounts or information in respect of
the borrower as may be required by the lender from
time to time.
11.2 The borrower hereby warrants that all Information
supplied or to be supplied to the lender by the borrower
concerning the borrower's business and financial position
is and will be true and correct in all respects.
12 RENUNCIATION OF BENEFITS
The borrower hereby expressly waives and renounces
the legal benefits and exceptions of non causa debiti,
errore calculi and revision of accounts and acknowledges
itself to be fully aware of the meaning and effect
of those benefits and exceptions and the renunciation
thereof.
13 DOMICILIUM AND NOTICES
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13.1 The parties choose domicilium citandi et executandi
("domicilium") for all purposes relating to this
agreement, including the giving of any notice, the
payment of any sum, the serving of any process,
as follows -
13.1.1 the borrower physical - 0 Xxxxxx Xxxxxx
Xxxxxxx
facsimile - 028-214 1270
13.1.2 the purchaser physical - 0 Xxxxxx Xxxxxx
Xxxxxxx
facsimile - 028-214 1270
13.1.3 Century Inc. physical - 200 - 000 Xxxx Xxxxxxx
Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
XXX
facsimile - 091 719 689 9700
13.1.4 COIL physical - 0 Xxxxx Xxxxxx
Xxxxxxx
facsimile - 021-418 9288
13.1.5 Century physical - c/a Werksmans
Attorneys
00 Xxxxxx Xxxx
Xxxxxxxx
Xxxxxxxxxxxx
facsimile - 011-484 3100
13.2 Any party shall be entitled from time to time, by giving written
notice to the others, to vary its physical domicilium to any
other physical address (not being a post office box or poste
restante) within the Republic of South Africa and to vary its
facsimile domicilium to any other facsimile number.
13.3 Any notice given or payment made by any party to another
("addressee") which is delivered by hand between the hours
of 09:00 and 17:00 on any business day to the addressee's
physical domicilium for the time being shall be deemed to
have been received by the addressee at the time of
delivery.
13.4 Any notice given by any party to another which is
successfully transmitted by facsimile to the addressee's
facsimile domicilium for the time being shall be deemed
(unless the contrary is proved by the addressee) to have
been received by the addressee on the day immediately
succeeding the date of successful transmission thereof.
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13.5 This 13 shall not operate so as to invalidate the giving or receipt
of any written notice which is actually received by the addressee
other than by a method referred to in this 13.
13.6 Any notice in terms of or in connection with this agreement
shall be valid and effective only it in writing and if
received or deemed to be received by the addressee.
14 GENERAL
14.1 This agreement constitutes the sole record of the agreement between
the parties in relation to the subject matter hereof. Neither
party shall be bound by any express, tacit or implied term,
representation, warranty, promise or the like not recorded
herein. This agreement supersedes and replaces all prior
commitments, undertakings or representations, whether oral or
written, between the parties in respect of the subject
matter hereof.
14.2 No addition to, variation, novation or agreed cancellation
of any provision of this agreement shall be binding upon the
parties unless reduced to writing and signed by or on
behalf of the parties.
14.3 No indulgence or extension of time which either party may grant
to the other shall constitute a waiver of or, whether by estoppel
or otherwise, limit any of the existing or future rights of the
grantor in terms hereof, save in the event and to the extent
that "the grantor has signed a written document
expressly waiving or limiting such right.
14.4 Without prejudice to any other provision of this
agreement, any successor-in-title, including any executor,
heir, liquidator, judicial manager, curator or trustee, of
either party shall be bound by this agreement.
14.5 The signature by either party of a counterpart of this agreement
shall be as effective as if that party had signed the same
document as the other party.
14.6 Century Inc. hereby undertakes to procure that Century will
fulfil its obligations to lend and advance to the borrower
the amount referred to in 4.1.
15 COSTS
15.1 The borrower shall bear and pay all costs of and incidental
to the negotiating, drafting, preparing and implementing of
this agreement and the transactions set out herein.
15.2 All legal costs, charges and disbursements incurred by the
lender in successfully enforcing or defending any of the
provisions of this agreement or any claim for advances or
payments pursuant to this agreement or any claim or action
hereunder shall be paid by the borrower on a scale as between
an attorney and his own client.
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Signed at CapeTown on Xxxxx 00, 0000
xxx Xxxxxxx Xxxxxxx Xxxxxx (Proprietary) Limited
/s/ Xxxxx Xxxxxx
who warrants that he is duly authorised hereto
Signed at CapeTown on March 31, 2000
for Caledon Casino Bid Company (Proprietary) Limited
/s/ Xxxx Xxxxxx
who warrants that he is duly authorised hereto
Signed at CapeTown on March 31, 2000
for Caledon Overberg Investments (Proprietary) Limited
/s/ Xxxx Xxxxxx
who warrants that he is duly authorised hereto
Signed at CapeTown on March 31, 2000
for Century Casinos Inc.
/s/ Xxxxx Xxxxxx
who warrants that he is duly authorised hereto
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