LOAN AGREEMENT
1 PARTIES
1.1 The parties to this agreement are
1.1.1 PSG Investment Bank Limited; and
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 ACT" means the Western Cape Gambling and Racing Law, No. 4 of
1996, as amended from time to time;
2.1.2 "THE/THIS AGREEMENT" means the agreement as set out herein,
together with all appendices hereto;
2.1.3 "THE BOARD" means the Western Cape Gambling and Racing
Board, as established in terms of section 2 of the Act;
2.1.4 "THE BOARD GUARANTEE" means the guarantee, a copy whereof is annexed
hereto as SCHEDULE 1, which PSGIB has furnished to the Board in
respect of Bidco's obligation, VIS- -VIS the Board and arising
out of the grant of the casino licence by the Board to Bidco, to
undertake all construction work required to implement the project;
2.1.5 "BIDCO" means Caledon Casino Bid Company (Proprietary)
Limited, a private company duly incorporated in accordance with
the company laws of the Republic of South Africa, with
registration number 96/010708/07;
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2.1.6 "BUSINESS DAY" means any day other than a Saturday, Sunday or
public holiday in the Republic of South Africa or a day on which
commercial banks in the Republic of South Africa generally are
not open for business;
2.1.7 "THE CASINO" means the casino, details of which appear in the
licence application, which Bidco will, if it obtains the casino
licence, construct and operate on the property and includes both
the permanent casino and the temporary casino both as identified
in the licence application;
2.1.8 "THE CASINO LICENCE" means the casino operation licence, as
envisaged in section 27 of the Act, for which Bidco has applied
in terms of the licence application;
2.1.9 "THE CASINO MANAGEMENT AGREEMENT" means the casino management
agreement concluded between Bidco and Century on 3 December 1999, in
terms whereof Century will manage the casino for and on behalf
of Bidco;
2.1.10 "CENTURY" means Century Casinos Africa (Proprietary) Limited, a
private company duly incorporated in accordance with the company laws
of the Republic of South Africa, with registration number
96/10501/07;
2.1.11 "COIL" means Caledon Overberg Investments (Proprietary) Limited, a
private company duly incorporated in accordance with the company laws
of the Republic of South Africa, with registration number
96/06728/07
2.1.12 "COMMENCEMENT OF OPERATIONS" means the first day on which the casino
is open for business to the general public whether it is the
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temporary casino or the permanent casino (both as identified in
the licence application) that is open for business;
2.1.13 "THE CONSTRUCTION PERIOD" means the period which commences on the
effective date and which terminates 18 (eighteen) months after the
effective date, or on the date on which all construction work
included in the project becomes practically complete, whichever
is the earlier;
2.1.14 "THE CONSTRUCTION CONTRACT" means the contract, envisaged in 3.3
read with 4.1.2 and 10.5 below, which Bidco will conclude with
the contractor;
2.1.15 "THE CONTRACTOR" means Concor Holdings (Proprietary) Limited;
2.1.16 "THE CONTRACTOR'S GUARANTEE" means the guarantee envisaged in 10.5.2
below, which the contractor will furnish to Bidco in terms
of the construction contract;
2.1.17 "DEBT EQUITY RATIO" means the ratio between the debts of Bidco
and the equity of Bidco where ~
2.1.17.1 "DEBT" means all interest-bearing debt of any nature whatsoever of
Bidco, including any cumulative redeemable preference shares issued
by it together with any share premium attributable to any such
cumulative redeemable preference shares, but excluding any debt
included in the definition of "EQUITY" in 2.1.17.2 below, as
reflected in Bidco's management accounts as at the date on which
the ratio is measured or as reflected in any audited financial
statements of Bidco that may have been prepared as at that date
and on the basis that if there is any conflict between any such
management accounts and such audited financial statements, the
audited financial statements shall prevail;
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2.1.17.2 "EQUITY" means the aggregate of the nominal values of all
ordinary shares in Bidco in issue on the date on which the debt
equity ratio is measured, the share premium of Bidco attributable
to any such ordinary shares, the shareholders' loans (for so long
as they remain subordinated in the manner set out in the
subordination agreement), any non-cumulative, non-redeemable
preference shares issued by Bidco, together with any share
premium attributable to any such shares, the capital amount
drawn-down by Bidco against the working capital facility and not
yet repaid and Bidco's distributable reserves, all as reflected
in Bidco's management accounts prepared as at the date on which
the debt equity ratio is measured or in Bidco's audited financial
statements prepared as at any such a date, and on the basis that
if there is any conflict between any such management accounts and
such audited financial statements, the audited financial statements
shall prevail;
2.1.18 "DEBT SERVICE COVER RATIO" means, in respect of any of Bidco's
financial years, the ratio for that year between ~
2.1.18.1 Bidco's net profit before interest and tax as reflected in its
audited financial statements for the financial year in question
and determined in accordance with generally accepted accounting
principles; and
2.1.18.2 if the ratio is determined in respect of the principal loan, all
amounts which became payable by Bidco to PSGIB during the year in
question in terms of the principal loan, or, if the ratio is
determined in respect of the working capital facility, all amounts
which became payable during the year in question by Bidco to PSGIB
in respect of the working capital facility;
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2.1.19 "THE EFFECTIVE DATE" means the 5th (fifth) business day after
the suspensive conditions have all been fulfilled or waived,
as the case may be;
2.1.20 "THE FINAL DATE" means the date on which Bidco has paid to PSGIB
all and any amounts which will become payable by it to PSGIB
arising out of or in connection with this agreement;
2.1.21 "XXXXXX" means Xxxxxx King Hospitality (Proprietary) Limited, a
private company duly incorporated in accordance with the company
laws of the Republic of South Africa, with registration number
80/00096/07;
2.1.22 "THE HOTEL" means the hotel known as the Xxxxxxxxxx Hotel which
currently consists of 98 (ninety eight) bedrooms and which will,
in the manner set out in the licence application, be altered and
upgraded into a hotel which will consist of 86 (eighty six)
rooms and 6 (six) suites;
2.1.23 "THE HOTEL MANAGEMENT AGREEMENT" means the hotel management
agreement entered into between Bidco and Xxxxxx on 3 December
1999, in terms whereof Xxxxxx will manage the hotel for and
on behalf of Bidco;
2.1.24 "INTEREST BASE RATE" means 14.45% (fourteen point forty five
PER CENTUM), nominal annual compounded semi-annually ;
2.1.25 "INTEREST COVER RATIO" means, in respect of any of Bidco's financial
years, the ratio for that year between ~
2.1.25.1 Bidco's net profit before interest and tax as reflected in its
audited financial statements for the financial year in question
and determined in accordance with generally accepted accounting
principles; and
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2.1.25.2 the difference between all interest incurred by Bidco during that
financial year in respect of all and any of its interest-bearing
debt of any nature whatsoever, including any dividends which
Bidco has contracted to pay during that year in respect of any
cumulative, redeemable preference shares issued by it, and the
interest actually received by Bidco during that financial year,
all as reflected in Bidco's audited financial statements for
the year in question;
2.1.26 "THE LICENCE APPLICATION' means the application for a gambling
licence, made by Bidco to the Board in terms of the provisions of
section 32 of the Act;
2.1.27 "LOAN LIFE COVER RATIO" means, at any particular point in time,
the ratio between ~
2.1.27.1 the anticipated revenue that Bidco will derive out of the project
for the period from the date on which the determination is made until
the final date, as reflected in the most recently updated project
forecast; and
2.1.27.2 all amounts (including, without limitation, any capital repayments
and any interest) as reflected in the most recently updated project
forecast, which, if the ratio is determined in respect of the
principal loan, will become due and payable by Bidco to PSGIB
in respect of the principal loan during the same period or, if
the ratio is determined in respect of the working capital
facility, will become due and payable by Bidco to PSGIB during the
same period in respect of the working capital facility;
2.1.28 "THE MINIMUM RATIOS" means the various minimum ratios referred
to in 10.1.1, 10.1.2, 10.1.3 and 10.1.4 below;
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2.1.29 "THE MODEL" means the computer model contained in a computer file
which is in the possession of PSGIB, which has been designed in
order to update the project forecast from time to time in order to
take account of Bidco's actual trading results, a hard copy of which
has been signed by the parties for the purposes of identification and
which said hard copy has been lodged with Attorneys Werksmans of
Johannesburg, being the attorneys who, as at the signature date,
Represent Bidco;
2.1.30 "THE PARTIES" means PSGIB and Bidco;
2.1.31 "THE PRIME RATE" means the publicly quoted basic rate of interest
(nominal annual) compounded monthly in arrears and calculated on a
365 (three hundred and sixty five) day year, from time to time
published by First National Bank of Southern Africa Limited as
being its prime overdraft rate, as certified by any manager of that
bank, whose authority and/or appointment and/or qualification it
will not be necessary to prove;
2.1.32 THE PRINCIPAL LOAN" means the loan made by PSGIB to Bidco in terms
of the provisions of 6 below;
2.1.33 "THE PROJECT" means ~
2.1.33.1 the construction and furbishment of the casino, spa and health
centre and tourist village emporium on the property;
2.1.33.2 the conversion and upgrading of the hotel and the furbishment of the
hotel;
2.1.33.3 all and any other construction work, identified in the licence
application, which Bidco will become obliged, VIS- -VIS the Board,
to undertake if it obtains the casino licence including, without
limitation, the construction of all roads and other infrastructure
as identified in the licence application;
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2.1.33.4 the purchase of all and any necessary equipment required by Bidco
in order to operate the casino both on a temporary and a
permanent basis;
2.1.33.5 the operation of the casino and the hotel;
2.1.34 "PROJECT COSTS" means all and any costs incurred by Bidco in
implementing the project including, without limitation, all
costs incurred by Bidco in connection with the project prior
to the signature date, and an amount not exceeding R2 500 000
(two million five hundred thousand Rand) which will become payable
by Bidco to Xxxxxx in respect of the furbishment of the hotel,
and including further all VAT that may become payable by Bidco
in respect of the aforesaid costs;
2.1.35 "THE PROJECT FORECAST" means the banking case model which has been
agreed by the parties, which reflects the anticipated trading
results of Bidco for the period from the commencement of operations
until the final date, updated from time to time, as envisaged in
10.4 below, in accordance with the model and in order to take
account of Bidco's actual trading results;
2.1.36 "THE PROPERTY" means the properties specified in SCHEDULE 2
2.1.37 "PSGIB" means PSG Investment Bank Limited, a public company with
a share capital duly incorporated in accordance with the company
laws of the Republic of South Africa, with registration number
98/17396/06;
2.1.38 "THE RESERVE ACCOUNT" means the reserve account envisaged in 7.3
below;
2.1.39 "THE SHAREHOLDERS' LOANS" means the shareholders' loans of
R30 000 000 (thirty million Rand) to be made by Century
and Coil to Bidco on the terms and conditions and conditions set
out in 5.2
8
below, those shareholders' loans to be subordinated, in the manner
set out in the subordination agreement, to the claims of PSGIB
against Bidco arising out of or in connection with this agreement;
2.1.40 "THE SIGNATURE DATE" means the date of signature of this agreement
by the party signing last in time;
2.1.41 "THE SUBORDINATION AGREEMENT" means the subordination agreement,
substantially in the form of SCHEDULE 3, to be concluded
between Xxxxxx, Century, Coil, PSGIB and Bidco on the
signature date;
2.1.42 "THE SUSPENSIVE CONDITIONS" means the suspensive conditions
contained in 4.1 below;
2.1.43 "VAT" means value-added Tax;
2.1.44 "THE WORKING CAPITAL FACILITY" means the working capital
facility made available by PSGIB to Bidco in terms of the
provisions of 7 below;
2.1.45 any reference to the singular includes the plural and VICE
VERSA;
2.1.46 any reference to natural persons includes legal persons and VICE
VERSA;
2.1.47 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.
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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
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 This agreement shall be governed by and construed and
interpreted in accordance with the law of the Republic of
South Africa.
3 INTRODUCTION
3.1 Bidco has applied for the casino licence.
3.2 If Bidco obtains the casino licence, it will undertake the project
and will require funds to do so.
3.3 Bidco has commenced negotiations with the contractor with a
view to concluding, with the contractor, a construction contract
("THE CONSTRUCTION CONTRACT") in terms of which the contractor
will undertake to execute all construction work that will be
required to be undertaken as a part of the project.
3.4 PSGIB has agreed to ~
3.4.1 make the principal loan to Bidco on the terms and conditions
contained herein;
3.4.2 grant the working capital facility to Bidco on the terms and
conditions contained herein.
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3.4.3 The Board has required Bidco, in anticipation of the grant of the
casino licence to Bidco, to procure that the Board guarantee is
issued to the Board, and PSGIB has issued the Board guarantee
to the Board.
4 SUSPENSIVE CONDITIONS AND BOARD GUARANTEE
4.1 This agreement is subject to the suspensive conditions that,
within a period of 2 (two) months after the signature date~
4.1.1 the Board grants the casino licence to Bidco on the basis that
Bidco will be the only person legally entitled to operate a casino
in the Overberg region of the West Cape Province, and on such
further terms and conditions as may be acceptable to PSGIB acting
in its reasonable discretion;
4.1.2 Bidco concludes the construction contract with the contractor,
that contract to contain at least the provisions set out
in 10.5 below;
4.1.3 the property is transferred to Bidco in the office of the
relevant Registrar of Deeds, and the mortgage bond envisaged
in 12.1.1 below is registered in favour of PSGIB over the
property;
4.1.4 the general notarial bond envisaged in 12.1.2 below is registered,
in the office of the relevant Registrar of Deeds, in favour
of PSGIB.
4.2 The suspensive conditions have been inserted into this agreement
for the benefit of both PSGIB and Bidco, and in the circumstances
the parties may in writing agree to waive all or any of the
suspensive conditions or to extend the period for fulfilment of
all or any of those conditions.
4.3 If the suspensive conditions are not fulfilled or waived as
envisaged in 4.2 above ~
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4.3.1 this agreement shall, subject to 4.5 below, be of no force
or effect;
4.3.2 Bidco shall pay to PSGIB the legal costs incurred by
PSGIB in the negotiation and preparation of this agreement, subject
to a limit of R50 000,00 (fifty thousand Rand) excluding
value-added tax;
4.3.3 thereafter, but subject to any contrary provisions of this
agreement, neither one of the parties shall have any claim of any
nature whatsoever against the other arising herefrom.
4.4 Each one of the parties undertakes to do all such things
as may be reasonably necessary in order to procure the
fulfilment of the suspensive conditions.
4.5 Insofar as PSGIB has issued the Board guarantee to the Board, the
parties agree that if the suspensive conditions are not
fulfilled or waived ~
4.5.1 Bidco shall nevertheless, and despite the provisions of 4.3 above,
remain obliged to register the mortgage bond envisaged in 12.1.1
below and the general notarial bond envisaged in 12.1.2 below
in favour of PSGIB;
4.5.2 if PSGIB becomes obliged to make payments of any amounts to
the Board pursuant to the Board guarantee, Bidco shall, forthwith
against demand by PSGIB, pay to PSGIB all and any amounts which
PSGIB become legally obliged to pay to the Board arising out of
or in connection with the Board guarantee;
4.5.3 if Bidco fails to make payment of any such an amount strictly on due
date, that amount shall bear interest at a rate of interest from time
to time equal to the prime rate;
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4.5.4 the provisions of this paragraph 4.5 (and of paragraphs 12.1.1
and 12.1.2 below) shall continue to apply, despite the fact that the
suspensive conditions have not been fulfilled or waived.
5 BIDCO'S SHAREHOLDERS' AGREEMENT
5.1 Bidco shall procure that Century and Coil shall ~
5.1.1 subscribe for ordinary shares in Bidco at a total subscription price
of R20 000 000 (twenty million Rand), those subscriptions to be
made as and when Bidco incurs project costs;
5.1.2 lend to Bidco an amount of R30 000 000 (thirty million Rand) on
the terms and conditions set out in 5.2 below.
5.2 The loans envisaged in 5.1.2 above must be made on the basis
that ~
5.2.1 those loans will not accrue interest at a rate of interest which,
from time to time, exceeds the rate of interest payable by Bidco
to PSGIB in respect of the principal loan;
5.2.2 the claims of Century and Coil against Bidco arising out
of or in connection with the shareholders' loans, shall be
subordinated to the claims of PSGIB against Bidco arising out of
or in connection with this agreement, that subordination to be
effected in the manner set out in the subordination
agreement.
5.3 Bidco shall not, until the final date, declare any dividends in
respect of the ordinary shares envisaged in 5.1.1 above ~
5.3.1 other than out of cash available to it, excluding any cash which
it is obliged to hold in the reserve account;
5.3.2 if, at the time of the declaration of those dividends, Bidco fails
to comply with all or any of the minimum ratios or if as a
result of the
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declaration and/or payment of those dividends Bidco will no longer
comply with any of the minimum ratios.
6 THE PRINCIPAL LOAN
6.1 PSGIB hereby lends, on the terms and conditions set out in this
agreement, an amount not exceeding R47 500 000,00 (forty
seven million five hundred thousand Rand) ("THE PRINCIPAL
LOAN") to Bidco, which Bidco shall apply ~
6.1.1 as to an amount of R40 000 000,00 (forty million Rand) in order
to pay project costs;
6.1.2 as to an amount of R500 000,00 (five hundred thousand Rand), in
respect of the raising fee envisaged in 6.11 below;
6.1.3 as to an amount of R7 000 000,00 (seven million Rand) in
respect of interest which accrues, during the construction period,
on amounts drawn-down by Bidco against the principal loan and
capitalised in terms of the provisions of 6.12 below.
6.2 Bidco shall not, except if expressly otherwise authorised
in this agreement, use the principal loan for any purpose
whatsoever other than the purposes set out in 6.1 above.
6.3 Bidco shall, once it has incurred project costs equal to the
aggregate of the proceeds of the issue of the shares
envisaged in 5.1.1 above and the shareholders' loans ("THE
THRESHOLD COSTS") obtain a certificate from its auditors
("THE AUDITORS' DRAW-DOWN CERTIFICATE") in which the auditors
certify that Bidco has incurred the threshold costs.
6.4 Once Bidco has incurred the threshold costs, it shall deliver
the auditors' draw-down certificate to PSGIB. Bidco shall,
subject to 6.5 below, not be entitled to draw-down any amounts
on account of the principal loan
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unless and until it has delivered the auditors' draw-down
certificate to PSGIB.
6.5 Bidco shall be entitled to draw, against the principal loan,
the amount envisaged in 6.1.2 above, on the date on which the
suspensive conditions have been fulfilled or waived, as the
case may be.
6.6 Once Bidco has delivered the auditor's draw-down certificate to
PSGIB, and provided that the suspensive conditions have been
fulfilled or waived, Bidco shall be entitled to draw-down amounts
against the principal loan as and when it incurs project costs over
and above the threshold costs. Bidco shall comply with the
following procedure in making any such draw-downs ~
6.6.1 if the draw-down which Bidco wishes to make relates to any
construction work undertaken by the contractor, Bidco shall
obtain from the professional person approved as envisaged in
9.5.3 below, a certificate in which that professional person
confirms that the construction work to which the proposed
draw-down relates has been completed;
6.6.2 if the proposed draw-down relates to any other project costs, Bidco
shall obtain from its then auditors a certificate confirming that
those project costs have been incurred;
6.6.3 Bidco shall deliver the aforesaid certificates to PSGIB no later
than 2 (two) business days prior to the date on which it wishes to
make the draw-down in question.
6.7 All draw-downs as envisaged in 6.6 above shall, subject to 6.8
and 6.9 below, be made by Bidco on the dates and in the amounts set
out in SCHEDULE 4.
6.8 If, for any reason whatsoever, Bidco will not, on any date set out
in SCHEDULE 4, be in a position to comply with the provisions
of 6.6 above
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in regard to the draw-down scheduled for that date in terms of
SCHEDULE 4, Bidco shall, at least 2 (two) business days prior to
the date in question, deliver to PSGIB written notice of its
inability to make the draw-down in question. In that case, Bidco
shall be entitled to make the draw-down in question at any date
after the date set out in SCHEDULE 2, provided that it shall, at
least 2 (two) business days prior to the date on which it
makes that draw-down ~
6.8.1 deliver the certificates envisages in 6.6 above to PSGIB;
6.8.2 at the same time deliver to PSGIB written notice of its intention
to make that draw-down.
6.9 If Bidco is in a position to comply with the provisions of 6.6
above in regard to any draw-down envisaged in Schedule 4 prior to
the date for which that draw-down is scheduled in terms of
SCHEDULE 4, Bidco shall be entitled to draw-down the amount in
question earlier provided that it shall, at least 2 (two) business
days prior to the date on which it wishes to make that draw-down,
deliver to PSGIB ~
6.9.1 the certificates envisaged in 6.6 above; and
6.9.2 written notices of the date on which it wishes to make that
draw-down.
6.10 PSGIB shall pay the amount of all draw-downs which Bidco becomes
entitled to make in terms of this paragraph 6 into such a bank
account as Bidco may from time to time in writing instruct.
6.11 Bidco shall pay to PSGIB, in respect of the principal loan, a
raising fee equal to R500 000 (five hundred thousand Rand),
excluding VAT. Payment of the aforesaid raising fee shall become
due on the signature date, and shall be made by Bidco to PSGIB
within 3 (three) business days after the signature date. If the
suspensive conditions are not
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fulfilled (or waived), PSGIB shall remain entitled to receive or to
retain that raising fee.
6.12 All amounts drawn-down by Bidco against the principal loan shall
accrue interest at a rate equal to 2,75% (two comma seven five PER
CENTUM) above the interest base rate, expressed as a nominal
annual compounded 6 (six) monthly rate. All interest which accrues
during the construction period in respect of amounts drawn-down by
Bidco against the principal loan shall be capitalised.
6.13 Notwithstanding anything to the contrary contained herein, PSGIB
shall not be obliged to advance to Bidco any further amounts on
account of the principal loan ~
6.13.1 once all amounts previously drawn-down by Bidco against the principal
loan, together with all capitalised interest on those amounts,
reaches or exceeds R 47 500 000,00 (forty seven million five
hundred thousand Rand); and/or
6.13.2 the construction period has expired (so that, if on termination
of the construction period Bidco has not drawn-down the full
amount of the principal loan, PSGIB shall no longer be obliged to
lend and advance the full amount of the principal loan to Bidco
but shall be obliged, instead, only to lend and advance to Bidco, on
account of the principal loan, the amount which, on expiry of the
construction period, has been drawn-down by Bidco together with
capitalised interest on those draw-downs).
7 THE WORKING CAPITAL FACILITY AND THE RESERVE ACCOUNT
7.1 PSGIB hereby makes a working capital facility available to Bidco
on the terms and conditions set out in this agreement. The
amount of the working capital facility shall be the lesser of ~
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7.1.1 R10 000 000,00 (ten million Rand); or
7.1.2 the difference between the amount of R13 500 000,00 (thirteen
million five hundred thousand Rand) and the retained income
of Bidco as reflected in its audited financial statement for
its first financial year which commences immediately after
the commencement of operations.
7.2 Subject to 7.4 below Bidco shall, out of the cash available to it
from time to time, and with effect from the date 1 (one) year
after the commencement of operations, maintain the following 2
(two) reserves ~
7.2.1 a debt service reserve which shall, at all relevant times, 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 working capital facility;
7.2.2 an interest reserve which shall, at all relevant times, be equal
to at least the aggregate amount of the interest that will accrue
in respect of the principal loan for the next 6 (six) months and the
interest that will accrue in respect of any amounts drawn-down by it
against the working capital facility for the next 6 (six) months.
7.3 Subject to 7.4 below, Bidco shall cause the amount of the debt
service reserve and the interest 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 ~
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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;
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 A
(or an equivalent rating) or better, 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.
19
7.5 Bidco shall not be entitled to draw-down any amounts against the
working capital facility unless and until ~
7.5.1 it has drawn-down the principal loan in full or, as envisaged
in 6.13.2 above, it has become disentitled to draw-down the full
amount of the principal loan; and
7.5.2 it has utilised all its retained earnings, as reflected in its
audited financial statements for its first financial year
after the commencement of operations, with the exception of any
amounts that it may require in order to deposit into the reserve
account, in order to meet its working capital requirements.
7.6 In order to ensure compliance with the provisions of 7.5.2
above, Bidco shall, before it draws-down any amount on account
of the working capital facility, obtain from its auditors a
certificate ("THE FACILITY DRAW-DOWN CERTIFICATE") in which the
auditors certify that Bidco has applied all its available retained
income towards its working capital requirements.
7.7 As and when Bidco wishes to draw-down any amounts against the
working capital facility, it shall deliver a written notice
to PSGIB ("A FACILITY DRAW-DOWN NOTICE") that notice to ~
7.7.1 set out the amount of the draw-down which Bidco wishes to make
against the working capital facility;
7.7.2 specify a draw-down date which shall not be less than 5 (five)
business days after receipt by PSGIB of the facility draw-down
notice in question);
7.7.3 be accompanied by the relevant facility draw-down certificate.
Bidco shall not be entitled to make draw-downs against the
working capital facility more frequently than once in every
calendar month.
20
7.8 PSGIB shall advance the amount specified in any facility
draw-down notice, provided that the facility draw-down notice
complies with the requirements of 7.7 above, on the draw-down date
stipulated in the facility draw-down notice. All advances made by
PSGIB to Bidco in respect of the working capital facility shall be
paid by PSGIB into such a bank account as Bidco may from time to time
in writing specify.
7.9 All amounts drawn-down by Bidco against the working capital facility
shall accrue interest from time to time at a rate equal to 3,75%
(three comma seven five PER CENTUM) above the interest base rate,
expressed as a nominal annual compounded six-monthly rate. All
interest which accrues on the working capital facility prior to
the date on which Bidco has drawn-down the working capital facility
in full shall be capitalised.
7.10 Notwithstanding anything to the contrary contained in this agreement,
PSGIB shall not be obliged to advance any further amounts on
account of the working capital facility to Bidco once all amounts
previously advanced by it to Bidco in respect of the working
capital facility, excluding any capitalised interest in respect of
those amounts, reach or exceed the maximum amount of the working
capital facility, determined in accordance with 7.1 above.
7.11 If Bidco has, by the expiry of a period of 24 (twenty-four) months
after the commencement of operations, not made any draw-downs
against the working capital facility ~
7.11.1 the working capital facility shall, with effect from the first day
of the 25th (twenty fifth) month after the commencement of
operations, IPSO FACTO terminate, and Bidco shall not, thereafter, be
entitled to draw-down any amounts against the working capital
facility;
7.11.2 no such a deemed cancellation of the working capital facility
shall, in any manner whatsoever, entitle Bidco to receive
repayment of
21
any commitment fee, as envisaged in 7.11 below, which it has paid
to PSGIB in respect of the working capital facility.
7.12 Bidco shall, with effect from the date on which the suspensive
conditions have been fulfilled or waived (as the case may be) and
monthly in advance, pay a monthly commitment fee to PSGIB in respect
of the undrawn portion of the working capital facility. That
commitment fee shall ~
7.12.1 for so long as any portion of the working capital facility remains
undrawn, be calculated on the 1st (first) day of each and
every calendar month;
7.12.2 be calculated, until it is possible to calculate the maximum amount
of the working capital facility in terms of the provisions of 7.1
above, on the amount of R10 000 000,00 (ten million Rand);
7.12.3 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 or, in the circumstances described in 7.12.2
above, on the amount R10 000 000,00 (ten million Rand);
7.12.4 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.
7.13 Bidco's obligation to pay the commitment fee envisaged in 7.11 above
shall terminate ~
7.13.1.1 with effect from the final facility date as defined in 8.1.2
below; or
22
7.13.1.2 with effect from the date on which the working capital facility
terminates by virtue of the provisions of 7.11.1 above.
8 REPAYMENT OF CAPITAL AND INTEREST
8.1 For the purposes of this paragraph ~
8.1.1 the "FINAL PRINCIPAL DATE" means the date on which all amounts
drawn-down by Bidco against the principal loan together with all
capitalised interest on those amounts reaches R47 500 000,00
(forty seven million five hundred thousand Rand) or the date 18
(eighteen) months after the effective date, whichever is the earlier;
8.1.2 the "FINAL FACILITY DATE" means the date on which Bidco has
drawn-down the working capital facility in full, or the last day
of Bidco's second financial year after the commencement of
operations, whichever is the earlier;
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;
8.1.4 "THE FACILITY OUTSTANDING" means the aggregate of all amounts
drawn-down by Bidco, as at the final facility date, against the
working capital 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
23
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 last
day of the 6th (sixth) month after 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 last day of each 6th (sixth) month after the final
facility date, the interest which has accrued on the facility
outstanding during the immediately preceding 6 (six) months.
9 INCREASED COSTS
9.1 If any of the following occurs ~
9.1.1 the adoption, change, amendment, variation, replacement or
change in interpretation of any Law, with which PSGIB is required
to comply, or any change in any circumstances occurs or any
duty is imposed at any time after the signature date; and/or
9.1.2 any directive, announcement, requirement, request or guidance
(whether or not having the force of law) of any central bank or
any other fiscal, monetary, regulatory or other authority;
9.1.3 and/or any change in banking practice as it affects or is applied
generally by any financial institution in the Republic of
South Africa; and/or
24
9.1.4 a requirement or a request by any statutory or monetary authority to
pay taxes, levies or other amounts whatsoever or to maintain
special deposits or reserve assets, in addition to those currently
paid or maintained or reserved by PSGIB; and/or
9.1.5 any compliance by PSGIB with any capital adequacy or similar
requirements howsoever arising;
which imposes, modifies or deems applicable any capital or reserve
requirements or similar requirements in respect of the principal
loan and/or working capital facility, or imposes on PSGIB any other
requirements or conditions affecting its obligations to make or
maintain the principal loan and/or working capital facility, with
the result that the cost to PSGIB of making or maintaining the
principal loan and/or the working capital facility is increased,
Bidco shall, within 10 (ten) business days after receipt of a
written demand from PSGIB , pay to PSGIB an additional amount
as is sufficient to compensate PSGIB for such increased cost.
9.2 PSGIB shall ~
9.2.1 notify Bidco immediately when it becomes aware of any event which
will or may entitle it to make a demand in terms of 9.1
above; and
9.2.2 at the same time provide Bidco with copies of all documents
evidencing such increased cost, as PSGIB may have in its possession
and as Bidco may reasonably require.
10 POSITIVE UNDERTAKINGS
10.1 Bidco shall ~
10.1.1 maintain a debt equity ratio of 44:56 with effect from the last day
of the 12th (twelfth) month after the commencement of operations
and shall maintain a debt equity ratio of 40:60 with effect
from the last
25
day of the 24th (twenty-fourth) month after the commencement of
operations;
10.1.2 maintain, for each of its financial years
commencing with the first financial year which follows
immediately upon the expiry of a period of 12 (twelve) months after
the commencement of operations, an interest cover ratio of at least
2 (two);
10.1.3 maintain, in respect of each of its financial years, commencing
with the 1st (first) financial year following upon the expiry of 12
(twelve) months after the commencement of operations, a debt
service cover ratio of at least 1,3 (one comma three) in respect of
the principal loan and a debt service cover ratio of at least 1,7
(one comma seven) in respect of the working capital facility;
10.1.4 maintain, in respect of each of its financial years, commencing
with the first financial year following upon the commencement of
operations, a loan life cover ratio of 1,5 (one comma five) in
respect of the principal loan and a loan life cover ratio of
2,5 (two comma five) in respect of the working capital facility;
10.1.5 supply PSGIB with copies of its monthly management accounts
within 30 (thirty) days after month-end during the period which
expires at the end of Bidco's first financial year after the
commencement of operations, and thereafter quarterly within 45
(forty five) days after the expiry of each and every quarter
(and quarters shall be reckoned with effect from the first day of
the first month of any of Bidco's financial years);
10.1.6 supply PSGIB with a copy of its audited financial statements
within 120 (one hundred and twenty) days of each financial
year end;
10.1.7 invite at least 1 (one) representative of PSGIB to attend all board
meetings of Bidco and provide such invitee with all
documentation
26
that shall form the subject matter of or be discussed at the
board meetings;
10.1.8 acquire and maintain all licences required for its business and shall
apply generally accepted practice and obey all regulations,
safety standards and applicable laws in the conduct of its
business including, without limitation, all obligations imposed on
it in terms of either the Act or the casino licence;
at all times ensure that it employs all such staff as may be
reasonably required by it in order to operate its business, all
such staff to be suitably qualified;
10.1.10 ensure that all construction work required to be undertaken as a
part of the project (as defined in the construction contract) is
completed no later than 18 (eighteen) months after the effective
date;
10.1.11 effect and maintain the insurance cover envisaged in 10.2 below
with effect from -
10.1.11.1 a period of three months after the signature date, in the case
of the insurance envisaged in 10.2.1 below;
10.1.11.2 the commencement of operations, in respect of all other
insurances envisaged in 10.2 below;
10.1.12 subject to 7.4 above, maintain the reserve account in the manner set
out in 7.2 read with 7.2.2 above;
10.1.13 ensure that, until the final date, it complies with all its
obligations in terms of the Casino management agreement and with
all its obligations in terms of the hotel management agreement
(both agreements as amended in terms of the subordination
agreement);
27
10.1.14 comply with all its obligations in terms of the construction
contract.
Any failure by Bidco to comply with any of its obligations in
terms of this paragraph 10.1 or in terms of 10.2 and/or 10.
3 below, shall constitute a material breach of this agreement.
10.2 Bidco shall, until the final date insure itself against all such
risks as a prudent man of business would insure himself
against, including, without limitation ~
10.2.1 property all-risks cover, the amount of that cover to be equal
to the replacement value of all its property whether movable
or immovable;
10.2.2 business interruption, the amount covered to be equal to at least 3
(three) months' of net monthly profits after interest and tax as
forecast in the most recently updated project forecast;
10.2.3 third-party liability, the amount of that cover to be at least
R10 000 000 (ten million Rand);
10.2.4 employee fidelity cover, the amount of that cover to be at least
R500 000 (five hundred thousand Rand) per event;
10.2.5 insurance on the lives of its key management staff, each such a
policy to be equal to at least twice the annual earnings of the
employee in question.
10.3 Bidco shall, against demand from PSGIB, deliver to PSGIB documentary
proof of the fact that the insurances envisaged in 10.2 above has
been obtained and that those insurances have been maintained
including, without limitation, that all insurance premiums due
in terms of those insurances have been paid.
28
10.4 The parties shall annually, no later than 22 (twenty two) business
days after the date on which Bidco's audited financial
statements for any particular financial year becomes available,
update the project forecast in accordance with the model in order to
take account of the actual trading results of Bidco during the
financial year in question as reflected in the aforesaid audited
financial statements.
10.5 The construction contract shall, save if PSGIB in writing otherwise
agrees, contain at least the following terms and conditions ~
10.5.1 in return for undertaking the construction work concerned, the
contractor must be entitled to be paid a fixed sum of money
("THE CONTRACT PRICE");
10.5.2 the contractor must be obliged to provide to Bidco a design,
operability and performance guarantee acceptable to PSGIB and equal
to at least 10% (ten PER CENTUM) of the contract price;
10.5.3 a suitably qualified professional person approved by PSGIB acting
in its reasonable discretion, must be appointed in order to
certify the progress made by the contractor from time to time in
attending to the required construction work, any such a
certificate to reflect the value of the work done;
10.5.4 the contract price must be payable to the contractor as and
when the certificates envisaged in 10.5.3 above are issued,
provided that, out of the amount of any such a certificate and
except if the contractor has delivered the retention bond
envisaged in 10.5.6 below, Bidco must be entitled to retain an
amount of 10% (ten PER CENTUM);
10.5.5 it must provide for a period, not to be shorter than 3 (three)
months after the date upon which the construction work to be
undertaken by the contractor becomes practically complete, during
which the
29
contractor will be liable to remedy defects that manifest
themselves in those works;
10.5.6 Bidco must be obliged to pay the amounts retained by it on account
of the contract price, on expiry of the period envisaged in 10.5.5
above, provided that if the contractor fails to attend to any
required repairs, Bidco must be entitled to effect those repairs
and to deduct the reasonable costs of doing so from any of the
aforesaid retained amounts;
10.5.7 the contractor must be entitled, if it so chooses, to furnish a
retention bond to Bidco in respect of the retentions envisaged in
10.5.4 above, and if the contractor furnishes such a retention bond,
Bidco must no longer be entitled to retain the amounts envisaged
in 10.5.4 above.
11 NEGATIVE UNDERTAKINGS
Bidco shall, until the final date ~
11.1 not incur, in any one of its financial years, any debts which,
inclusive of interest which will accrue on those deeds,
exceed R1 000 000,00 (one million Rand) in the aggregate;
11.2 not encumber any of its assets without the prior written consent of
PSGIB;
11.3 not dispose of any of its assets, otherwise than in the ordinary
course of business, without the prior written consent of PSGIB;
11.4 procure that each one of Century and Coil maintains its
shareholding in Bidco at a number of shares equal to at least 35%
(thirty five PER CENTUM) of all the issued shares of Bidco of
any class whatsoever;
30
11.5 ensure that, if either Century or Coil sells any of its shares in
Bidco, PSGIB is advised forthwith;
11.6 procure that there is no change in control of either Century or
Coil ("THE COMPANY"), and for this purpose control shall
mean ~
11.6.1 the beneficial ownership of the majority of the issued equity shares
of the company; or
11.6.2 the beneficial ownership of issued shares of the company
entitling the beneficial owner thereof to exercise less than a
majority of votes attaching to all the issued shares of the
company, where such voting power is sufficiently dominant relative
to the spread of other shareholdings that it constitutes DE FACTO
control of the company; or
11.6.3 the right, through shareholding or otherwise, to control the
composition of the board of directors of the company and, without
prejudice to the generality of the aforegoing, the composition
of such board shall be deemed to be so controlled if the person
or company holding the right may by the exercise of some power,
directly or indirectly, appoint or remove the majority of the
directors; or
11.6.4 the right to control the management of the company;
11.7 ensure that, if there is a change of control of either Century or
Coil as contemplated in 11.6 above, PSGIB is advised forthwith;
11.8 not breach any of the provisions of the subordination
agreement;
11.9 not declare any dividend in contravention of the provisions of 5.3
above.
11.10 ensure that it will not, in respect of its use of the property,
incur any environmental liability. Bidco hereby indemnifies PSGIB and
holds PSGIB harmless against all and any claims of any nature
whatsoever
31
that may be made against it by any third party whatsoever arising
in any manner whatsoever out of or in connection with the use
of the property by Bidco.
Any failure by Bidco to comply with any of its obligations in
terms of this paragraph 11 shall constitute a material breach
of this agreement.
12 SECURITY
12.1 As security for the proper and timeous performance by Bidco of
all its obligations to PSGIB in terms of the provisions of this
agreement (including, without limitation, the obligation
envisaged in 4.5 above, Bidco ~
12.1.1 shall forthwith after the signature date at its cost register
a first mortgage bond over the property in favour of PSGIB in such
form and subject to such terms and conditions as PSGIB may
reasonably require, that mortgage bond to provide security for an
amount of at least R65 000 000 (sixty five million Rand);
12.1.2 shall forthwith after the signature date at its cost register a
general notarial bond over all its movable assets, that bond to
be collateral to the mortgage bond envisaged in 12.1.1 above, and
that bond to be registered in such a form as PSGIB may
reasonably require;
12.1.3 shall, if PSGIB so requires, at its cost register a special
notarial bond over such of Bidco's movable assets as PSGIB may
require, that bond to be registered in such a form as PSGIB
may reasonably require;
12.1.4 hereby cedes to PSGIB all its right, title and interest in and to
all and any claims which it may have against all and any of its
debtors from time to time, whether those claims are now in
existence or whether they come into existence in future;
32
12.1.5 hereby cedes to PSGIB all its right, title and interest in
and to the contractor's guarantee;
12.1.6 hereby cedes to PSGIB all its right, title and interest in and
to all insurance policies referred to in 10.2 above;
12.1.7 hereby cedes to PSGIB all its right, title and interest in and
to the reserve account.
12.2 The mortgage bond envisaged in 12.1.1 above and the notarial
bonds envisaged in 12.1.2 above, shall be registered by Attorneys
Hofmeyr, Herbstein & Gihwala. Bidco shall give to those attorneys
all such reasonable assistance as they may require in order to
procure registration of the aforesaid mortgage bond and notarial
bonds.
12.3 Bidco shall, as soon as it receives the contractor's
guarantee, any insurance policy envisaged in 10.2 above or any
documents evidencing the reserve account, deliver the document
in question to PSGIB.
13 DEFAULT
13.1 An event of default shall occur if ~
13.1.1 Bidco fails to make any payment due and payable in terms of this
agreement on due date and fails to remedy such failure within 7
(seven) days after the receipt by Bidco of written notice from
PSGIB demanding that Bidco make the payment; or
13.1.2 Bidco fails to maintain the debt equity ratios stipulated in 10.1
above, and fails to remedy that breach within a period of 90
(ninety) days after receipt by it of written notice from PSGIB
requiring it to remedy that breach; or
13.1.3 the construction contract is cancelled for any reason prior to
the date upon which the construction work included in the project
has
33
become practically complete, the casino management agreement is
terminated for any reason whatsoever prior to the final date or
the hotel management agreement is terminated for any reason
whatsoever prior to the final date; or
13.1.4 Bidco commits any material breach of any of its obligations in
terms of this agreement (with the exception of the breach envisaged
in 13.1.2 above) and, if that breach is capable of being
remedied, fails to remedy it within 30 (thirty) days of receipt
of written notice by it from PSGIB requiring it to remedy that
breach; or
13.1.5 Bidco commits any material breach of any of its obligations in
terms of this agreement, if that breach is not capable of
being remedied; or
13.1.6 Bidco commits an act which is or would be an act of insolvency
within the meaning of Section 8 of the Insolvency Act, 1936 and fails
to remedy the default within 7 (seven) days of the receipt by Bidco
of written notice requiring such default to be remedied; or
13.1.7 final judgement is entered against Bidco which is not paid within 7
(seven) days after the date thereof, and which may, in the
exclusive opinion of PSGIB, adversely effect the ability of Bidco to
meet any of its obligations in terms of this agreement, and no
steps are taken within that period to appeal against or set aside
that judgement (provided that it shall be deemed that an appeal or
application, once noted or filed, shall have been abandoned by
Bidco if that appeal or application is not actively prosecuted in
accordance with, and within the time period of, the court rules
governing the appeal or application, as the case may be); or
13.1.8 Bidco compromises or attempts to compromise generally with its
creditors; or
34
13.1.9 Bidco is provisionally or finally wound-up; or
13.1.10 Bidco utilises the principal loan or the working capital loan
for purposes other than that set out in this agreement; or
13.1.11 Bidco loses the casino licence, or the casino licence is suspended
or not renewed for any reason whatsoever; or
13.1.12 the board amends the casino licence so that Bidco will no longer
be the only person lawfully entitled to operate a casino in the
Overberg region; or the construction work included in the project is
not practically completed (in the sense in which the expression
"PRACTICALLY COMPLETED" is normally understood in the construction
industry) prior to the expiry of a period of 18 (eighteen) months
after the effective date;
13.1.14 Bidco fails to maintain the insurances referred to in 10.1.11
read with 10.2 above until the final date.
13.2 Upon the occurrence of an event of default, PSGIB shall, subject to
13.3, be entitled to declare the whole of the principal loan
amount and the working capital amount and all interest accrued
thereon to be immediately due and payable.
13.3 If Bidco fails to make any payment in terms of this agreement on
the due date, then whether or not PSGIB has exercised its rights to
accelerate repayment in terms of 13.2, the amount outstanding shall
bear interest at 2% (two PER CENTUM) above the prime rate.
35
14 INSTRUMENTS
14.1 PSGIB shall, at any time whilst any amounts remain owing to it by
Bidco in terms of this agreement, be entitled to require Bidco to
issue promissory notes to it in respect of the amounts thus
owing.
14.2 If PSGIB exercises the right conferred on it in terms of 14.1
above ~
14.2.1 Bidco shall, no later than 5 (five) business days after receipt of
written notice from PSGIB, issue the promissory notes in
question to PSGIB;
14.2.2 Bidco shall pay all and any stamp duty that may become payable in
respect of the issue of those promissory notes.
15 RENUNCIATION OF BENEFITS
Bidco expressly waives and renounces the legal benefits and
exceptions NON NUMERATAE PECUNIAE, NON CAUSA DEBITI, revision of
accounts and ERRORI CALCULI, and it declares itself to be fully
acquainted with the meaning and affect of these exceptions and
renunciation thereof.
16 CESSION AND DELEGATION
16.1 PSGIB shall not be entitled to delegate any of its obligations in
terms of this agreement without first obtaining Bidco's prior
written consent, which consent shall not be withheld
unreasonably, it being recorded that the withholding of such
consent shall not be unreasonable if the proposed delegee has a
worse credit rating than PSGIB.
16.2 PSGIB shall not cede its rights in terms of this agreement to any
third person whatsoever without first obtaining the consent of
Bidco, which consent shall not be unreasonably withheld. Any
person to whom PSGIB cedes, with the consent of Bidco, its rights
in terms of this agreement
36
shall, however, be entitled itself to cede those rights to
any third party without first obtaining Bidco's consent.
17 ARBITRATION
17.1 Any dispute arising from or in connection with this agreement
shall be finally resolved in accordance with the rules of the
Arbitration Foundation of Southern Africa by an arbitrator or
arbitrators appointed by the Foundation.
17.2 The provisions of this clause ~
17.2.1 constitute an irrevocable consent by the parties to any
proceedings in terms hereof and no party shall be entitled to
withdraw therefrom or claim at any such proceedings that it is
not bound by such provisions;
17.2.2 are severable from the rest of this agreement and shall remain in
effect despite termination of or invalidity for any reason
of this agreement.
18 NOTICES AND DOMICILIA
18.1 The parties choose as their DOMICILIA CITANDI ET EXECUTANDI
their respective addresses set out in this clause for all purposes
arising out of or in connection with this agreement at which
addresses all processes and notices arising out of or in connection
with this agreement, its breach or termination may validly be
served upon or delivered to the parties.
18.2 For purposes of this agreement the parties' respective addresses
shall be ~
18.2.1 PSGIB at 0xx Xxxxx , 000 Xxx Xxxxx Xxxxxx, Xxxxxxxx, marked
"FOR THE ATTENTION OF XXXXX XXXXXXX";
facsimile number (011) 788-4361;
37
Bidco at 0 Xxxxxx Xxxxxx, Xxxxxxx 0000, marked "FOR THE
ATTENTION OF THE MANAGING DIRECTOR";
facsimile number (028) 214 1270,
or at such other address of which the party concerned may notify
the other/s in writing provided that no street address mentioned
in this sub-clause shall be changed to a post office box or
POSTE RESTANTE.
18.3 Any notice given in terms of this agreement shall be in writing and
shall ~
18.3.1 if delivered by hand be deemed to have been duly received by the
addressee on the date of delivery;
18.3.2 if posted by prepaid registered post be deemed to have been received
by the addressee on the 8th (eighth) day following the date
of such posting;
18.3.3 if transmitted by facsimile be deemed to have been received
by the addressee on the day following the date of despatch,
unless the contrary is proved.
18.4 Notwithstanding anything to the contrary contained or implied
in this agreement, a written notice or communication actually
received by one of the parties from another including by way
of facsimile transmission shall be adequate written notice or
communication to such party.
19 WHOLE AGREEMENT
This agreement constitutes the whole agreement between the
parties as to the subject matter hereof and no agreements,
representations or warranties between the parties regarding the
subject matter hereof other than those set out herein are
binding on the parties.
38
VARIATION
No addition to or variation, consensual cancellation or
novation of this agreement and no waiver of any right arising
from this agreement or its breach or termination shall be of
any force or effect unless reduced to writing and signed by all
the parties or their duly authorised representatives.
21 RELAXATION
No latitude, extension of time or other indulgence which may be
given or allowed by any party to the other parties in
respect of the performance of any obligation hereunder, and no
delay or forbearance in the enforcement of any right of any
party arising from this agreement, and no single or partial
exercise of any right by any party under this agreement,
shall in any circumstances be construed to be an implied consent
or election by such party or operate as a waiver or a novation
of or otherwise affect any of the party's rights in terms of or
arising from this agreement or estop or preclude any such
party from enforcing at any time and without notice, strict
and punctual compliance with each and every provision or term
hereof.
22 COSTS
22.1 PSGIB shall pay the costs of and incidental to the preparation
of this agreement;
22.2 Bidco shall pay the amount of all charges and expenses of whatever
nature, including, without derogating from the generality of the
aforegoing, attorney and own client legal cost and collection
commission incurred by PSGIB in securing or endeavouring to
secure fulfilment, of any obligations in terms of this agreement.
39
SIGNED at Capetown on April 13, 2000
AS WITNESS:
------------
/s/ Xxxxx Xxxxxx For: PSG INVESTMENT BANK LIMITED
/s/ Xxxxx Xxxxxx /s/ Xxxxxx Xxxxxxx
(Name of witness in print) Duly Authorised
SIGNED at Capetown on April 13, 2000
AS WITNESS:
------------
/s/ Xxxxxx Xxxxxxx For: CALEDON CASINO BID COMPANY
(PROPRIETARY) LIMITED
/s/ Xxxxxx Xxxxxxx /s/ Xxxxx Xxxxxx
(Name of witness in print) Duly Authorise
40
SCHEDULE 2
PROPERTIES
1. Remaining extent of the farm Oatlands No. 408
Registration Division Caledon Road
Measuring 22,6821 hectares
2. Portion 1 of the Farm Oatlands No. 408
Registration Division Caledon Road
Measuring 3,6015 hectares
3. Portion 3 of the Farm Caledon Baths No. 560
Registration Division Caledon Road
Measuring 2,6732 hectares
4. Remaining extent of the Farm 812
Registration Division Caledon Road
Measuring 71,6142 hectares
5. Xxx 0000 Xxxxxxx Township
Registration Division Caledon Road
Measuring 11,5067 hectares
6. Xxx 0000 Xxxxxxx
Registration Division Caledon Road
Measuring 65,7272 hectares
7. Xxx 0000 Xxxxxxx
Registration Division Caledon Road
Measuring 29,8924 hectares
8. Portion 1 of the Farm 812,
in the municipality of Caledon
measuring 20,9124 hectares.
41
