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LIMITED GUARANTEE AND CESSION AND PLEDGE IN SECURITY
given by
DCT HOLDINGS (PTY) LTD as Cedent
in favour of
THE TRUSTEE FOR THE TIME BEING OF THE PINNACLE TECHNOLOGY
HOLDINGS NOTE TRUST, CURRENTLY GMG TRUST COMPANY (SA) (PTY) LTD,
ACTING ON BEHALF OF AND FOR THE BENEFIT OF THE GROUP 1
NOTEHOLDERS as Cessionary
in respect of the Pledged Shares
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CONTENTS
Clause
Page
1.
Interpretation ...................................................................................................................... 3
2.
Limited Guarantee and Indemnity ...................................................................................... 4
3.
Pledge and Cession in Security ......................................................................................... 7
4.
Duration .............................................................................................................................. 8
5.
Representations and Warranties by Cedent ...................................................................... 8
6.
Undertakings by the Cedent ............................................................................................ 10
7.
Delivery of Documents ..................................................................................................... 11
8.
Corporate action in respect of the pledged shares .......................................................... 12
9.
Rights of the Cedent before a declared default ............................................................... 13
10.
Realisation........................................................................................................................ 13
11.
Appropriation of Proceeds................................................................................................ 16
12.
Place of Payment ............................................................................................................. 16
13.
Further Assurances .......................................................................................................... 16
14.
Additional Rights .............................................................................................................. 17
15.
Cedent bound notwithstanding Certain Circumstances................................................... 17
16.
Keeping, Inspection and Delivery of Records .................................................................. 17
17.
Exemption from Liability ................................................................................................... 18
18.
Disputes of Right .............................................................................................................. 18
19.
Severability ....................................................................................................................... 18
20.
miscellanous matters ....................................................................................................... 18
Signature Page .......................................................................................................................... 22
Annex 1 Tripartite Agreement .................................................................................................... 19
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THIS AGREEMENT is made between:
(1)
DCT HOLDINGS (PTY) LTD) (registration number2013/196828/07) as pledgor and cedent
(the Cedent); and
(2)
THE TRUSTEE FOR THE TIME BEING OF THE PINNACLE TECHNOLOGY HOLDINGS
NOTE TRUST, CURRENTLY GMG TRUST COMPANY (SA) (PTY) LTD, ACTING ON
BEHALF OF AND FOR THE BENEFIT OF THE GROUP 1 NOTEHOLDERS as cessionary
(the Cessionary).
BACKGROUND:
As security for the due and punctual performance of the Secured Obligations, the Cedent has
agreed to pledge its Pledged Shares and to cede in securitatem debiti all its present Rights and
Interests to the Cessionary, on the terms set out in this Agreement.
1.
1.1
INTERPRETATION
Construction
1.1.1
Terms defined in the terms and conditions of the Group 1 Notes issued by
Pinnacle Holdings, in terms of the ZAR2,500,000,000 Pinnacle Holdings
domestic medium term note programme, as set out in the programme
memorandum of Pinnacle Holdings dated 19 April 2013 (as revised,
supplemented, amended, updated or replaced from time to time), as
supplemented by the applicable pricing supplement in respect of the Group 1
Notes, shall, except where the context otherwise requires and save where
otherwise defined or provided for in this Agreement, have the same meanings in
this Agreement.
1.1.2
Any undertaking of the Cedent under this Agreement remains in force until the
Discharge Date.
1.1.3
If the Cessionary considers that an amount paid to the Cessionary under a
Finance Document is capable of being avoided or otherwise set aside on the
liquidation or administration of the payer or otherwise, then that amount will not
be considered to have been irrevocably discharged for the purposes of this
Agreement.
1.2
Definitions
In this Agreement:
1.2.1
Acceleration Notice means a notice delivered to Pinnacle Holdings pursuant to
the Group 1 Notes, following an event of default (however defined) in terms of
the Group 1 Notes, pursuant to which the indebtedness under the Group 1
Notes becomes immediately due and payable;
1.2.2
Agreement means this limited guarantee and pledge and cession in security
agreement, and any annexes or schedules to this agreement;
1.2.3
CSDP means a Central Securities Depository Participant, accepted as a
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participant under the Financial Markets Act;
1.2.4
DataCentrix Holdings Limited means Datacentrix Holdings Limited, a
company incorporated in accordance with the laws of South Africa, registration
number 1998/006413/06;
1.2.5
Discharge Date means the date on which all the Guaranteed Obligations have
been unconditionally and irrevocably paid and discharged in full;
1.2.6
Financial Markets Act means the Financial Markets Act, 2012, as amended or
replaced from time to time;
1.2.7
Guarantee means the irrevocable and unconditional limited recourse guarantee
and indemnity provided by the Cedent to the Cessionary pursuant to Clause 2;
1.2.8
Guaranteed Obligations means all present and future obligations and
indebtedness of whatsoever nature (whether actual or contingent and whether
owed jointly or severally or in any other capacity whatsoever, including any
liability to pay damages or pursuant to enrichment) which the Issuer may now or
at any time hereafter owe or have towards the Group 1 Noteholders, including
payment of all amounts which are due and payable under or in connection with
any Finance Document to which it is a party;
1.2.9
Party means a party to this Agreement;
1.2.10
Pinnacle Holdings or the Issuer means Pinnacle Holdings Limited (formerly
Pinnacle Technology Holdings Limited), a company incorporated in accordance
with the laws of South Africa, registration number 1986/000334/06;
1.2.11
Pledged Shares means 68,520.048 ordinary shares in the issued share capital
of DataCentrix Holdings Limited held by the Cedent;
1.2.12
Rights and Interests means all of the Cedent’s rights to and interests in and to
the Pledged Shares and any claims which it may have arising under or in
connection with the Pledged Shares;
1.2.13
Secured Obligations means all present and future obligations and
indebtedness of whatsoever nature (whether actual or contingent and whether
owed jointly or severally or in any other capacity whatsoever, including any
liability to pay damages or pursuant to enrichment) which the Cedent may now
or at any time hereafter owe or have towards the Cessionary under or in
connection with the Guarantee; and
1.2.14
Statutory Flagging means the noting of the pledge and cession by the CSDP in
terms of section 39 of the Financial Markets Act.
2.
2.1
2.1.1
LIMITED GUARANTEE AND INDEMNITY
Limited guarantee and indemnity
The Cedent (as principal obligor and not merely as surety) irrevocably,
unconditionally and on the basis of a severable and discrete obligation
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enforceable against it whether or not any or all of the Guaranteed Obligations
are enforceable:
(a)
undertakes to the Cessionary that if, and each time, Pinnacle Holdings is in
default in respect of the payment of the Guaranteed Obligations and has
failed to remedy such default within any applicable grace period, the
Cedent will, on first written demand from the Cessionary, pay all sums
which are then due by Pinnacle Holdings as if the Cedent instead of
Pinnacle Holdings was expressed to be the primary obligor in respect of
such sums; and
(b)
indemnifies the Cessionary and holds it harmless on demand against any
loss, liability or cost suffered by the Cessionary if any of the Guaranteed
Obligations guaranteed by the Cedent is or becomes unenforceable,
invalid or illegal. The amount of that loss, liability or cost shall be equal to
the amount which the Cessionary would otherwise have been entitled to
recover in respect of the Guaranteed Obligations.
2.1.2
The Cedent waives any right it may have of first requiring the Cessionary to
proceed against Pinnacle Holdings, or to enforce any guarantee or security
granted by any other person before enforcing the rights under the Guarantee.
2.1.3
The Guarantee shall be in addition to and shall not in any way be prejudiced by
any collateral or other security now or hereafter held by the Cessionary as
security for the Guaranteed Obligations or any lien to which it may be entitled in
respect thereof. The rights of the Cessionary hereunder are in addition to and
not exclusive of those provided by law.
2.1.4
The Cessionary agrees that payment by the Cedent in terms of the Guarantee
shall discharge Pinnacle Holdings liability in like amount to the Cessionary for
the underlying obligations of Pinnacle Holdings to the Cessionary, to which that
payment relates.
2.2
Continuing Security
2.2.1
The Guarantee shall be a continuing security and shall remain in force
notwithstanding any intermediate payment in part of the Guaranteed Obligations.
2.2.2
Any discharge or release which the Cessionary may effect with the Cedent shall
be deemed to be made subject to the condition that it will be void to the extent
that any payment or security which the Cessionary may previously have
received or may thereafter receive from any person in respect of the indemnity is
set aside, refunded or reduced under any applicable law or proves to have been
for any reason invalid. If such condition is satisfied, the Cessionary shall be
entitled to recover from the Cedent on demand the value of such security or the
amount of any such payment as if such discharge or release had not been
effected.
2.3
2.3.1
Waiver of Defences
The liability of the Cedent under the Guarantee shall not, subject to applicable
law, be prejudiced, affected or diminished by any act, omission, circumstance,
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matter or thing which but for this provision might operate to release or otherwise
exonerate the Cedent, or any one of them, from its obligations hereunder in
whole or in part, including:
2.4
2.4.1
(a)
any time or waiver granted to or composition with Pinnacle Holdings, the
Cessionary, the Cedent or any other person; or
(b)
the variation, compromise, renewal or release or refusal or neglect to
perfect or enforce any rights, remedies or securities against Pinnacle
Holdings, the Cedent, or any one of them or any other person; or
(c)
any variation (however fundamental and whether or not more onerous) of
or extension of the due date for performance of any term of any agreement
in connection with any of the Guaranteed Obligations (with the intent that
the Cedent's obligations in respect of the Guaranteed Obligations shall
apply to such term as varied or in respect of the extended due date) or any
increase, reduction, exchange, acceleration, renewal, surrender, release or
loss of or failure to perfect any of the Guaranteed Obligations or any
security therefor or any non-presentment or non-observance of any
formality in respect of any instruments provided in relation to the
Guaranteed Obligations; or
(d)
the winding-up, business rescue or any change in the constitution of
Pinnacle Holdings, the Cessionary, the Cedent or any one of them or any
other person; or
(e)
any legal limitation, disability, incapacity or other circumstances relating to
Pinnacle Holdings, the Cessionary, the Cedent or any other person or any
amendment or supplement to or variation of any of the Guaranteed
Obligations.
Deferral of rights
Until the Discharge Date and unless the Cessionary otherwise directs, the
Cedent will not exercise any rights which it may have by reason of any amount
being payable, or liability arising, under the Guarantee:
(a)
to be indemnified by Pinnacle Holdings;
(b)
to take the benefit (in whole or in part and whether by way of subrogation,
cession of action or otherwise) of any rights of the Cessionary under the
Guaranteed Obligations or of any other guarantee or security taken
pursuant to, or in connection with, the Guaranteed Obligations by the
Cessionary;
(c)
to bring legal or other proceedings for an order requiring Pinnacle Holdings
to make any payment, or perform any obligation, in respect of the
Guarantee;
(d)
to exercise any right of set-off against Pinnacle Holdings; and/or
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(e)
2.4.2
2.5
to claim, rank, prove or vote as a creditor of Pinnacle Holdings in
competition with the Cessionary.
If the Cedent receives any benefit, payment or distribution in relation to such
rights, it shall hold that benefit, payment or distribution to the extent necessary to
enable all amounts which may be or become payable to the Cessionary by
Pinnacle Holdings under or in connection with the Guaranteed Obligations to be
repaid in full on trust for (or otherwise for the benefit of) the Cessionary and shall
promptly pay or transfer the same to the Cessionary or as the Cessionary may
direct.
Certificates
A certificate signed by any officer, who is duly authorised to do so, of the Cessionary
(whose authority and appointment it shall not be necessary to prove) setting forth the
amount of any Guaranteed Obligation shall set out in reasonable detail the calculation
thereof and be prima facie evidence of such amount as against the Cedent.
2.6
Waiver of Benefits
The Cedent hereby renounces any benefits to which it may as Cedent in law be
entitled, including, without limitation, the benefits of excussion, division, cession of
action, revision of accounts and no value received, and declares itself to be fully
acquainted with the meaning and effect of those exceptions and the renunciation
thereof.
2.7
Limited recourse and Maximum Liability
Notwithstanding anything to the contrary contained herein, the Cessionary shall not be
entitled to any recourse whatsoever under the Guarantee, other than to enforce the
pledge and security cession under this Agreement once the Guarantee becomes
enforceable. Without in any way limiting or derogating from the foregoing, the
maximum liability of the Cedent under the Guarantee shall be limited to the net
realised value of the Guaranteed Obligations of the Cedent which forms the subject
matter of the pledge and security cession under this Agreement.
3.
3.1
PLEDGE AND CESSION IN SECURITY
Pledge and cession
With effect from date of signature of this Agreement, the Cedent pledges to the
Cessionary the Pledged Shares and cedes in securitatem debiti to the Cessionary all
its present Rights and Interests, as continuing general covering collateral security for
the due, proper and punctual payment and performance in full of all the Secured
Obligations, on the terms set out in this Agreement, which pledge and cession the
Cessionary accepts.
3.2
3.2.1
Nature of pledge and cession
The pledge and cession contemplated by this Agreement are intended to
operate as a pledge and a cession of each part of and all the Pledged Shares
and the Rights and Interests, individually and collectively.
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3.2.2
If, for any reason, any security interests intended to be created under this
Agreement are or become illegal, invalid or unenforceable in respect of some of
the Pledged Shares or the Rights and Interests, the pledge of those Pledged
Shares and the cession of those Rights and Interests shall be severed from this
Agreement, and this Agreement and all the security interests created over the
remainder of the Pledged Shares and the Rights and Interests shall continue in
full force and effect.
3.2.3
It is the intention of the Parties that the cession under this Agreement should
operate as a security cession and not as an outright cession and, accordingly,
that the Cedent shall (i) remain the beneficial owner of the Pledged Shares and
the Rights and Interests (and consequently any distributions of any kind paid by
the Issuer of the Pledged Shares and any other amounts of whatsoever nature
payable on account of the Rights and Interests from time to time will accrue to,
be paid to and be receivable and claimable by the Cedent until the Cessionary
exercises its rights in terms of clause 10) and (ii) accordingly retain bare
ownership of the Pledged Shares and the Rights and Interests and that in the
event of the insolvency of the Cedent such Pledged Shares and the Rights and
Interests will form part of the Cedent's insolvent estate, subject to the rights of
the Cessionary as a secured creditor.
3.3
Cedent remains liable to perform obligations
Notwithstanding any other provision of a Finance Document, the Cedent shall remain
liable to perform all its duties and obligations, whether contractual or otherwise, in
respect of its Pledged Shares and the Rights and Interests and nothing in this
Agreement or the exercise by the Cessionary of any right under a Finance Document
shall constitute or be deemed to constitute a delegation to or acceptance by the
Cessionary of any obligation of the Cedent or any other person.
4.
DURATION
This Agreement and the security interests created pursuant to this Agreement:
4.1
come into full force and effect on the date of this Agreement without any further
action, consent or authority required from any person save for the actions, consents
or authority required in order to give effect to the Statutory Flagging;
4.2
unless otherwise agreed by the Cessionary, shall not terminate before the Discharge
Date; and
4.3
shall remain in full force and effect as continuing covering security, notwithstanding
any intermediate discharge or settlement of, or temporary fluctuation in, the Secured
Obligations.
5.
5.1
5.1.1
REPRESENTATIONS AND WARRANTIES BY CEDENT
General
The Cedent makes the representations and warranties set out in this Clause 5 to
the Cessionary on each day that this Agreement is in force. A reference in this
Clause to it or its, unless the context otherwise requires, is a reference to the
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Cedent.
5.1.2
5.2
The Cessionary enters into the Finance Documents on the strength of and
relying on the representations and warranties set out in this Clause 5, each of
which is a separate representation and warranty, given without prejudice to any
other representation or warranty and is deemed to be a material representation
or warranty (as applicable) inducing the Cessionary to enter into the Finance
Documents.
Status
It is a limited liability company, duly incorporated and validly existing under the laws of
South Africa.
5.3
Powers and authority
It has the power and capacity to enter into and perform, and has taken all necessary
corporate action to authorise the entry into and performance of, this Agreement and
the transactions contemplated by this Agreement.
5.4
Legal validity
This Agreement:
5.4.1
creates the security interests it purports to create and is not liable to be avoided
or otherwise set aside on its liquidation or business rescue or otherwise; and
5.4.2
constitutes its legally valid and binding obligation, enforceable against it in
accordance with its terms.
5.5
Non-conflict
Its entry into and the performance of its obligations under this Agreement, the
transactions contemplated by and the security interests created under this
Agreement, do not and will not conflict with:
5.5.1
any law or regulation applicable to it; or
5.5.2
its constitutional documents; or
5.5.3
any contractual obligation or document which is binding upon it or any of its
assets (except for contractual restrictions existing on the date of this Agreement
which are waived to the satisfaction of the Cessionary before or on the date of
this Agreement).
5.6
Authorisations
5.6.1
All authorisations required by it in connection with the entry into, performance,
validity and enforceability of, the transactions contemplated by and the security
interests established under, this Agreement have been obtained or effected (as
appropriate) and are in full force and effect.
5.6.2
If it is required to give notice to or obtain consents or waivers from any person to
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pledge the Pledged Shares and cede the Rights and Interests under this
Agreement, all such notices have been given and consents or waivers obtained
before the date of the Issue Date.
5.7
Pledged Shares and Rights and Interests
5.7.1
The Rights and Interests are and will be valid and all rights evidenced thereby or
construed in respect thereof are and will be legally valid, binding and fully
enforceable in accordance with their terms in all respects.
5.7.2
It is and will remain the sole legal and beneficial owner of the Pledged Shares
and the Rights and Interests over which it purports to grant security interests
under this Agreement to the exclusion of all others
5.7.3
No person has an option or right of refusal over the Pledged Shares and/or the
Rights and Interests or any part thereof which would apply on enforcement by
the Cessionary of its rights under this Agreement, except as expressly permitted
under the Finance Documents.
5.7.4
No part of the Pledged Shares and/or the Rights and Interests has been
pledged, ceded (either outright or as security), discounted, factored, mortgaged
under notarial bond or otherwise, or otherwise disposed of or hypothecated, nor
is it subject to any other right or claim in favour of any person (including any
rights of pre-emption) which would apply on enforcement by the Cessionary of
its rights under this Agreement, except as expressly permitted under the Finance
Documents. Should any of the Pledged Shares and/or the Rights and Interests
be subject to a security interest in breach of this representation and warranty
then, without prejudice to any other rights that the Cessionary may have, any
reversionary or other interests the Cedent may have in the said Pledged Shares
and/or Rights and Interests are also ceded to the Cessionary.
5.7.5
The Pledged Shares are fully paid for, and have been validly issued or
transferred to it in compliance with all applicable laws and regulations and are
held in uncertificated form. The CSDP in respect of the Pledged Shares for the
time being is Investec Securities Proprietary Limited.
6.
6.1
UNDERTAKINGS BY THE CEDENT
General
The Cedent is bound by the undertakings set out in this Clause 6 relating to it.
6.2
Negative pledge
Except as expressly permitted in the Finance Documents, the Cedent:
6.2.1
shall not grant any further security interests or dispose of the Pledged Shares
and the Rights and Interests in any manner without the consent of the
Cessionary; and
6.2.2
must at all times keep the Pledged Shares and the Rights and Interests free of
judicial attachments and other security interests.
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6.3
Preservation of Pledged Shares and the Rights and Interests
The Cedent undertakes:
6.3.1
to the extent reasonably possible, that it shall not permit any material
depreciation of the value of, or a variation of rights relating to, the Pledged
Shares and the Rights and Interests or any of them to occur without the consent
of the Cessionary (except for depreciation or variations which occur in the
ordinary course of business or which result from disposals or the creation of
security interests which are expressly permitted under the Finance Documents);
6.3.2
not to take or omit to take any action which could reasonably be expected to
result in a material depreciation or adversely affect the rights of the Cessionary
under this Agreement or the effectiveness of the security interests created by
this Agreement;
6.3.3
to take all appropriate steps required from time to time for the care, preservation
and protection of the Pledged Shares and the Rights and Interests and the rights
of the Cessionary under this Agreement; and
6.3.4
timeously to comply in full with all its obligations in respect of the Pledged
Shares and the Rights and Interests, from time to time.
The Cedent waives for the benefit of the Cessionary any and all rights it may have in
respect of the Pledged Shares and the Rights and Interests which conflict with or may
restrict the rights of the Cessionary under this Agreement.
6.4
Pledged Shares
The Cedent irrevocably authorises the Cessionary as its agent in rem suam, in
respect of the Pledged Shares, to take all steps necessary to ensure that an
appropriate entry is made in the securities account of the Cedent with its CSDP, in
accordance with section 39 of the Financial Markets Act, to record the relevant
security interests in those Pledged Shares created under this Agreement.
6.5
Amounts received on account of the Pledged Shares and the Rights and
Interests
If an Acceleration Notice is delivered, the Cedent shall within 5 (five) Business Days
of receipt of such Acceleration Notice by the Issuer. pay and transfer to the
Cessionary, and place it in possession of, all cash and other assets received in
respect of the Pledged Shares and the Rights and Interests.
7.
DELIVERY OF DOCUMENTS
The Cedent must deliver the documents set out in this Clause 7 to the Cessionary by no
later than 1 (one) Business Day after the date of this Agreement (or in respect of Pledged
Shares and the Rights and Interests acquired by the Cedent or otherwise arising thereafter,
as soon as reasonably possible after that property becomes Pledged Shares and the
Rights and Interests).
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7.1
Uncertificated Pledged Shares
The Cedent must deliver to the Cessionary, in respect of the Pledged Shares a signed
copy of the memorandum of agreement between the CSDP, the Cessionary and the
Cedent (the Tripartite Agreement), in the form of the Tripartite Agreement supplied
by the CSDP and attached hereto as Annex 1.
7.2
Other requirements
7.2.1
If any Pledged Shares or the Rights and Interests, or part thereof, is evidenced
by a document, or when the Cedent holds security for any obligation owed to it
in respect of the Pledged Shares or the Rights and Interests and that security is
evidenced by a document, the Cedent shall, at the request of the Cessionary,
promptly deliver a certified copy of that document to the Cessionary.
7.2.2
In addition to the documents referred to above, the Cedent shall deliver to the
Cessionary:
(a)
in respect of the Pledged Shares and the Rights and Interests acquired by
the Cedent or otherwise arising after the date of this Agreement, all
applicable items of documentation referred to in Clauses 7.1 above and
7.2.1 above;
(b)
any other documents relating to the Pledged Shares and the Rights and
Interests for which the Cessionary may at any time reasonably call,
which documents must be delivered to the Cessionary within a reasonable
period, as agreed between the Cessionary and the Cedent and, failing such
agreement, within 10 Business Days.
7.2.3
The Cessionary may retain possession of all documents delivered to it under this
Clause 7 and deal with them in accordance with the Finance Documents until
the Discharge Date, on which date they shall be returned to the Cedent.
7.2.4
If any third party consents are required by the Cedent to pledge its Pledged
Shares and cede any of its Rights and Interests under this Agreement, it must
obtain those third party consents before or on the Issue Date.
8.
8.1
CORPORATE ACTION IN RESPECT OF THE PLEDGED SHARES
Should, prior to the Cessionary exercising any of its rights in terms of clause 10, any
of the Pledged Shares be sub-divided, consolidated or converted into any other
shares, securities or rights, or any shares, securities or rights be issued, distributed or
otherwise received or accrued on account of the Pledged Shares in connection with
any corporate action or distribution made by the Issuer of the Pledged Shares or
otherwise, the sub-divided, consolidated or converted shares, securities or rights, or
such other issued, distributed, received or accrued shares, securities or rights (as the
case may be) shall automatically be ceded in security and pledged to the Cessionary
upon the terms of this Agreement, and the Cedent shall take all such steps as are
necessary to ensure such shares, securities or rights are ceded in security and
pledged to the Cessionary in terms of this Agreement, including without any limitation,
instructing the CSDP to note the cession in security and pledge in accordance with
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section 39 of the Financial Markets Act. References in this Agreement to the “Pledged
Shares” shall thereafter be construed to include any such sub-divided, consolidated or
converted shares, securities or rights, or such other issued, distributed, received or
accrued shares, securities or rights (as the case may be).
8.2
9.
9.1
The Cedent shall, prior to any exercise by the Cessionary of its rights in terms of
clause 10, be entitled to exercise the voting rights in respect of the Pledged Shares at
any general meeting of the Issuer thereof.
RIGHTS OF THE CEDENT BEFORE A DECLARED DEFAULT
General
If and for so long as no Acceleration Notice has been delivered and the Cessionary is
not entitled to enforce its rights in respect of the Pledge Shares and the Rights and
Interests, the Cedent is entitled, at its own cost, to:
9.1.1
enforce and receive payment for, delivery of or performance in respect of all
amounts or obligations owing in respect of the Pledged Shares and the Rights
and Interests in the ordinary course of business and, subject to the Finance
Documents, to appropriate amounts so recovered for its own use, including any
dividends or other benefits in respect of its Pledged Shares and the Rights and
Interests and investments;
9.1.2
receive notice of every general meeting of shareholders of DataCentrix Holdings
Limited (provided that each such notice is to be forwarded to the Cessionary as
if it were a shareholder of DataCentrix Holdings Limited); and
9.1.3
attend every general meeting of the shareholders of DataCentrix Holdings
Limited, and exercise all the votes attaching to the Pledged Shares at such
meetings.
9.2
Locus standi
9.2.1
If the Cedent wishes to institute and prosecute any legal proceedings in respect
of the Pledged Shares and the Rights and Interests, such proceedings must,
unless otherwise agreed in writing by the Cessionary, be instituted and
prosecuted in the name of the Cessionary (in its capacity as Cessionary under
this Agreement) and the Cessionary may impose such conditions in relation to
the conduct of legal proceedings.
9.2.2
The Cedent shall bear all costs and expenses (including legal fees) in
connection with legal proceedings instituted or prosecuted by the Cedent
pursuant to this Clause. The Cessionary shall not be liable for any such costs or
expenses.
10.
10.1
REALISATION
Rights of the Cessionary
If an Acceleration Notice is delivered to Pinnacle Holdings, the Cessionary may,
without prejudice to any other rights it may have against the Cedent, exercise its
rights under this Clause 10, and otherwise put into force and effect all rights, powers
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and remedies available to it in relation to the Pledged Shares and the Rights and
Interests, in such manner and on such terms and conditions as it in its sole discretion
considers most expedient. Without limiting the foregoing, if an Acceleration Notice is
delivered to Pinnacle Holdings, the Cessionary may, and the Cedent hereby
irrevocably and unconditionally authorises and empowers the Cessionary or its
nominee, and appoints it in rem suam, without any further authority or consent of any
nature whatsoever required from any person, in the name of the Cessionary or in the
name of any Cedent to:
10.1.1
exercise all or any of the rights, powers and privileges and enforce all or any
obligations attaching to the Pledged Shares and/or the Rights and Interests in
such manner and on such terms as the Cessionary in its sole discretion deems
fit;
10.1.2
receive payment for, delivery of, and/or performance in respect of, the Pledged
Shares and/or the Rights and Interests in its own name;
10.1.3
authorise any officer of the Cessionary (whose appointment need not be proved)
to sign, on behalf of and in the name of the Cedent, any securities transfer form
or any other document that may be necessary to give effect to any disposal of
the Pledged Shares and/or the Rights and Interests by the Cessionary under this
clause 10;
10.1.4
at the election of the Cessionary:
(a)
sell or otherwise realise all or some of the Pledged Shares and/or the
Rights and Interests by public auction or for such price and subject to such
terms and conditions as it, acting in its discretion, thinks fit subject to the
condition that such price and such terms and conditions shall be arrived at
on an arm’s-length basis;
(b)
sell or otherwise realise at fair market value all or some of the Pledged
Shares and/or the Rights and Interests by private treaty, on reasonable
notice to the Cedent of not less than 10 (ten) Business Days; or
(c)
take over all or some of the Pledged Shares and/or the Rights and
Interests at fair market value,
and, subject to the provisions of Clause 11 below (Appropriation of Proceeds),
apply the proceeds of such sale, purchase or other realisation or transfer
(including the purchase price payable for any Pledged Shares and/or Rights and
Interests taken over by the Cessionary) against the Secured Obligations on the
basis that any excess upon realisation or balance owing to the Cedent (as the
case may be) will be paid to the Cedent and any shortfall on realisation will
remain a debt due to the Cessionary.
For the purposes of this Clause, the fair market value of any Pledged Shares
and/or Rights and Interests will be the value agreed in writing between the
Cessionary and the Cedent or, failing agreement within 10 (ten) Business Days
after delivery of a notice to the Cedent stating that the Cessionary exercises its
rights under this Clause 10.1, the value determined by an independent
accountant agreed to by the Cessionary and the Cedent (or, failing agreement
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within 5 Business Days, appointed, at the request of either Party, by the
President of the Southern African Institute of Chartered Accountants, or the
successor body thereto), which independent accountant shall act as an expert
and not as an arbitrator, shall be instructed to make his determination within 10
(ten) Business Days and shall determine the liability for his charges (which shall
be paid accordingly), provided that if a determination is manifestly unjust and a
court exercises its general power, if any, to correct such determination, each
Party shall be bound thereby;
10.1.5
institute any legal proceedings which the Cessionary may deem necessary in
connection with any sale, purchase or other realisation or transfer of any of the
Pledged Shares and/or the Rights and Interests;
10.1.6
compromise any of the Pledged Shares and/or Rights and Interests, grant any
extension or other indulgence in respect of the Pledged Shares and/or Rights
and Interests, agree to amend the terms of the Pledged Shares and/or Rights
and Interests, and/or release any security, guarantee or suretyship held for the
Pledged Shares and/or Rights and Interests; and
10.1.7
give transfer of and convey valid title in any Pledged Shares and/or the Rights
and Interests to any person (including the Cessionary) and take all such further
or other steps as the Cessionary may consider necessary to deal with the
Pledged Shares and/or the Rights and Interests.
10.2
Undertakings by Cedent in respect of realisation
On the Cessionary taking any action under Clause 10.1 above, or otherwise as
required by the Cessionary if an Acceleration Notice is delivered to Pinnacle Holdings,
the Cedent shall on demand by the Cessionary:
10.2.1
give written notice to all persons required by the Cessionary that payment for,
delivery of or performance in respect of the relevant Pledged Shares and/or the
Rights and Interests must be made to the Cessionary and that payment, delivery
or performance to the Cedent or to anyone else will not constitute valid payment,
delivery or performance, and the Cessionary shall be entitled to do likewise.
The Cedent shall on demand by the Cessionary provide proof that such
notification has been duly given;
10.2.2
refuse to accept any payment, delivery, or performance tendered in respect of
any of the Pledged Shares and/or the Rights and Interests and order that such
payment, delivery or performance be tendered to the Cessionary; and
10.2.3
at its own cost, carry out any lawful directions the Cessionary may give in regard
to the realisation of the Pledged Shares and/or the Rights and Interests and sign
any document or do any other lawful act necessary to (a) vest the Pledged
Shares and/or the Rights and Interests in the Cessionary; (b) enable any sale,
purchase or other realisation or transfer of the Pledged Shares and/or the Rights
and Interests, or (c) perfect and complete (to the extent necessary) the pledge
and the cession of any Pledged Shares and/or Rights and Interests under this
Agreement.
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10.3
No obligation on Cessionary
Notwithstanding anything to the contrary contained in this Agreement, the Cessionary
shall not be obliged to take any steps to preserve, protect, collect, recover or
otherwise enforce its rights under or in respect of the Pledged Shares and/or the
Rights and Interests.
11.
APPROPRIATION OF PROCEEDS
Subject to the provisions of the Finance Documents, the Cessionary shall apply the net
proceeds of all amounts received pursuant to the sale or other realisation of the Pledged
Shares and/or the Rights and Interests under this Agreement (after deducting all properly
evidenced costs and expenses reasonably incurred by the Cessionary in relation to that
sale or realisation) in reduction or discharge of the Secured Obligations in such order and in
such manner as the Cessionary deems fit. Any amount remaining thereafter shall be paid
to the Cedent within 15 (fifteen) Business Days of the Discharge Date and, pending such
payment, shall be deposited by the Cessionary in a call account held by the Cessionary.
12.
PLACE OF PAYMENT
Subject to the provisions of the Finance Documents, and unless otherwise agreed or
specified by the Cessionary by notice in writing, all payments due by the Cedent under this
Agreement or in respect of the Pledged Shares and the Rights and Interests shall be made
free of any bank or other charges in the currency of the Secured Obligations into a bank
account, or at such other address in South Africa, nominated, in writing by the Cessionary.
13.
FURTHER ASSURANCES
The Cedent shall promptly do everything that may be required in order to comply with its
obligations under this Agreement and as may otherwise be required by the Cessionary for
the purposes of and to give effect to this Agreement, failing which the Cessionary may, to
the extent possible, attend thereto on behalf of the Cedent and recover on demand from the
Cedent any reasonable expenses incurred in relation thereto. In particular the Cedent shall
execute and do all such acts and things as the Cessionary, in its reasonable discretion,
may require:
13.1
to perfect or protect the security interests created (or intended to be created) by this
Agreement;
13.2
to preserve or protect any of the rights of the Cessionary under this Agreement;
13.3
to enforce any security interests created under this Agreement on or at any time after
it becomes enforceable;
13.4
for the exercise of any power, authority or discretion vested in the Cessionary under
this Agreement;
13.5
to carry out the effect, intent and purpose of this Agreement,
in any such case, forthwith upon demand by the Cessionary to the maximum extent
permitted by law and at the expense of the Cedent.
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14.
ADDITIONAL RIGHTS
The rights conferred on the Cessionary by this Agreement are additional to and not in
substitution for:
14.1
any other rights the Cessionary has, or may at any time in the future have, against the
Cedent or any other person; or
14.2
any other security held or hereafter to be held by the Cessionary from the Cedent, or
any other person, in connection with the Secured Obligations. The Cessionary may
release any security held by it without prejudice to its rights under this Agreement.
15.
CEDENT BOUND NOTWITHSTANDING CERTAIN CIRCUMSTANCES
The Cedent agrees that on signature hereof, it will be bound under this Agreement to the
full extent hereof, despite the fact that:
15.1
any intended additional security from the Cedent or any other person for the Secured
Obligations may not be obtained or may be released or may cease to be held for any
other reason;
15.2
the Cessionary may agree any variation or novation of the Finance Documents
(including any amendment providing for the increase in the amount of a Facility or an
additional facility);
15.3
the Cessionary may receive a dividend or benefit in any insolvency, liquidation or
business rescue or any compromise or composition, whether in terms of any statutory
enforcement or the common law;
15.4
the Cessionary may grant any indulgences to the Cedent or may not exercise any one
or more of its rights under the Finance Documents, either timeously or at all; or
15.5
any other fact or circumstance may arise on which the Cedent might otherwise be
able to rely on a defence based on prejudice, waiver or estoppel.
If the Cedent suffers any loss arising from any of the facts, circumstances, acts or
omissions referred to above, it will have no claim against the Cessionary in respect thereof.
16.
KEEPING, INSPECTION AND DELIVERY OF RECORDS
16.1
The Cedent shall at all times keep up-to-date records of the Pledged Shares and/or
the Rights and Interests and shall comply with any reasonable directions the
Cessionary may give in regard to the keeping of such records.
16.2
The Cessionary or anyone authorised by the Cessionary may at any time and on
reasonable notice inspect any of the Cedent's books of account and other records
including books of account and records in the possession of a third party.
16.3
If the Cessionary at any time so requests, the Cedent shall at its own cost deliver to
the Cessionary certified copies of any of the books and records referred to in Clauses
16.1 or 16.2 above.
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17.
EXEMPTION FROM LIABILITY
The Cessionary, its officers, trustees, agents, beneficiaries, employees and advisors shall
not be liable for any loss or damage, whether direct, indirect, consequential or otherwise,
suffered by the Cedent howsoever arising in connection with this Agreement, whether that
loss or damage arises as a result of a breach of contract (whether total, fundamental or
otherwise), delict or any other cause and whether this Agreement has been terminated or
not, other than as a result of the gross negligence or wilful misconduct of the Cessionary.
18.
DISPUTES OF RIGHT
Where in this Agreement it is provided that the Cessionary may only exercise a right if an
Acceleration Notice has been delivered to Pinnacle Holdings and a Cedent disputes that an
Acceleration Notice has been delivered to Pinnacle Holdings, then pending final resolution
of that dispute, the Cessionary shall be entitled, without restriction, to exercise its rights
under this Agreement in all respects, and the Cedent shall in all respects continue to
perform its obligations under this Agreement and to give effect to its terms (including
provisions relating to the enforcement of the security) as if all requirements for the exercise
by the Cessionary of that right have been met.
19.
SEVERABILITY
Each term of this Agreement, whether forming an entire clause or only part of a clause, is
divisible and severable from all the other terms (regardless of the manner in which they
may be linked together or grouped grammatically). If a term or provision of this Agreement
is or becomes illegal, invalid or unenforceable in any respect in any jurisdiction, that will not
affect:
19.1
the legality, validity or enforceability in that jurisdiction of any other term or provision
of this Agreement which shall remain in full force and effect, and such illegal, invalid
or unenforceable term or provision shall be severed from this Agreement; or
19.2
the legality, validity or enforceability in other jurisdictions of that or any other term of
this Agreement,
and in particular, the Cessionary shall be entitled to deal with its rights in respect of the
Pledged Shares and/or the Rights and Interests in such manner as is sanctioned or
approved in terms of a court order or as is otherwise legally permissible.
20.
MISCELLANOUS MATTERS
20.1
Notices
The Parties choose as their domicilia citandi at executandi ("domicilium") for all
purposes under this Agreement, whether in respect of court process, notices or other
documents or communications of whatsoever nature, the following addresses or at
such other address, not being a post office box or post restante, of which the Party
concerned may notify the other in writing:
20.1.1
DCT Holdings (Pty) Ltd
Physical:
The Summit
269 16th Road
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Midrand
Gauteng
Telefax:
Attention:
20.1.2
011 265 3059
The Chief Financial Officer
The Trustee for the time being of The Pinnacle Technology Holdings Note
Trust, currently GMG Trust Company (SA) (Pty) Ltd, acting on behalf of
and for the benefit of the Group 1 Noteholders:
Physical:
GMG Trust Company (SA) (Pty) Ltd
3rd Floor, 200 on Main
Cnr Main Street and Bowwood Roads
Claremont
7708
Telefax:
Email:
Attention:
086 673 3490
[email protected]
The Managing Director
20.2
Any Party may at any time, by notice in writing to the other Parties, change its
domicilium to any other address in the Republic of South Africa which is not a post
office box or post restante.
20.3
Any notice given in connection with this Agreement shall, save where a particular form
of notice is stipulated, be:
20.3.1
delivered by hand; or
20.3.2
sent by courier; or
20.3.3
sent by telefax (if the domicilium includes a telefax number);
20.3.4
sent by e-mail, provided that an e-mail address has been provided for in
clause 20.1 above,
to the domicilium chosen by the Party concerned.
20.4
A notice given as set out above shall be deemed to have been duly given (unless the
contrary is proved):
20.4.1
if delivered by hand before 16h30, on the date of delivery, or otherwise the
immediately following Business Day; or
20.4.2
if sent by courier and delivered before 16h30, on the date of delivery by the
courier service concerned, or otherwise the immediately following Business
Day; or
20.4.3
if sent by telefax, on the expiration of 24 hours after the time of transmission,
unless actually received on the date of transmission; or
20.4.4
if sent by e-mail, on the immediately following Business Day.
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20.5
Notwithstanding anything to the contrary herein contained, a written notice or
communication actually received by a party shall be an adequate written notice or
communication to such party.
20.6
Law and Jurisdiction
20.6.1
This Agreement shall be governed by and construed in accordance with the laws
of South Africa.
20.6.2
Each Party agrees that any legal action or proceedings arising out of or in
connection with this Agreement may be brought against it in the High Court of
South Africa (Gauteng Local Division, Johannesburg) (or any successor to that
court) and irrevocably submits to the non-exclusive jurisdiction of such court.
20.7
Counterparts
This Agreement may be executed in two or more counterparts all of which, when read
together, shall constitute one and the same instrument.
20.8
Successors and Assigns
20.8.1
This Agreement shall be binding on and inure to the benefit of the Cessionary
and the Cedent and their respective successors, transferees and permitted
assigns.
20.8.2
The Cedent shall not be entitled to cede any of its rights or transfer or purport to
transfer any of its obligations hereunder without the prior written consent of the
Cessionary.
20.8.3
The Cessionary shall be entitled at any time to cede all or any of its rights and to
delegate all or any of its obligations hereunder to any third party to whom it is
entitled to cede its rights and delegate its obligations under the Finance
Documents. The Cedent hereby unconditionally and irrevocably consents to the
splitting of claims against it which may result from or pursuant to or in
consequence of any such cession and/or delegation by the Cessionary in terms
of this Agreement.
20.9
Whole Agreement, No Amendment
20.9.1
This Agreement constitutes the whole agreement between the Parties relating to
the subject matter hereof.
20.9.2
No amendment or consensual cancellation of this Agreement or any provision or
term hereof or of any agreement, bill of exchange or other document issued or
executed pursuant to or in terms of this Agreement and no settlement of any
disputes arising under this Agreement and no extension of time, waiver or
relaxation or suspension of or agreement not to enforce or to suspend or
postpone the enforcement of any of the provisions or terms of this Agreement or
of any agreement or other document issued pursuant to or in terms of this
Agreement shall be binding unless recorded in a written document signed by the
Parties (or in the case of an extension of time, waiver or relaxation or
suspension, signed by the Party granting such extension, waiver or relaxation).
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Any such extension, waiver or relaxation or suspension which is so given or
made shall be strictly construed as relating strictly to the matter in respect
whereof it was made or given.
20.9.3
No extension of time or waiver or relaxation of any of the provisions or terms of
this Agreement or any agreement or other document issued or executed
pursuant to or in terms of this Agreement, shall operate as an estoppel against
any Party in respect of its rights under this Agreement, nor shall it operate so as
to preclude such Party thereafter from exercising its rights strictly in accordance
with this Agreement.
20.9.4
To the extent permissible by law no Party shall be bound by any express or
implied term, representation, warranty, promise or the like not recorded herein,
whether it induced the contract and/or whether it was negligent or not.
20.10
Independent Advice
Each Party acknowledges that it has been free to secure independent legal and other
advice as to the nature and effect of all the provisions of this Agreement and that it
has either taken such independent legal and other advice or dispensed with the
necessity of doing so. Further, each Party acknowledges that all of the provisions of
this Agreement and the restrictions herein contained have been negotiated as
between it and the other Parties hereto and are part of the overall intention of the
Parties in connection with this Agreement.
20.11
Stipluation in favour of Group 1 Noteholders
This Agreement constitutes a stipulation in favour of each of the Group 1 Noteholders
and shall be deemed to have been accepted by each of them and to constitute a
binding agreement with each of them (notwithstanding that such Group 1 Noteholders
shall not have executed this Agreement) upon the issue or transfer, as the case may
be, of a Group 1 Note to any such Group 1 Noteholder.
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SIGNATURE PAGE
THE CESSIONARY
________________________________
For and on behalf of:
The Trustee for the time being of The
Pinnacle Technology Holdings Note
Trust, currently GMG Trust Company
(SA) (Pty) Ltd, acting on behalf of and
for the benefit of the Group 1
Noteholders
Name:
Capacity
Date:
THE CEDENT
For and on behalf of:
DCT HOLDINGS (PTY) LTD
Name:
Capacity
Date:
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ANNEX 1
TRIPARTITE AGREEMENT
23