These General terms and conditions, together with the Engagement letter and its annexure(s), constitutes Alpha African Advisory Limited’s Engagement contract for the delivery of our services.
These General Terms and Conditions apply to all professional relationships between Alpha African Advisory Limited and its clients.
Where there is any conflict, the engagement letter and its annexure(s), if any, shall have priority over the General terms and conditions. The words and expressions used below shall have the following meaning in the Engagement contract
1. Definitions:
The meaning of the following words and phrases, which are widely used in these General Terms and Conditions shall be as set out below and shall apply whenever used in engagement letters.
– ‘Advisory Fees’ means the total fees agreed between the Parties as per the engagement letter.
– ‘Completion’ shall be deemed to have occurred upon reaching Financial Close on the project. Financial Close shall be deemed to have occurred upon execution of financing agreements or final transaction documentation on the Transaction.
– ‘Effective Date’ means the commencement/start of the engagement of Alpha African Advisory.
– ‘Engagement Letter’ means a letter evidencing the engagement of Alpha African Advisory to provide any of its offered services to clients.
– ‘Financial Adviser or AAA’ means Alpha African Advisory Limited
– ‘Financial Close’ shall be deemed to have occurred upon the execution of relevant financing and regulatory documentation on the Transaction
– ‘Indemnified Person/Party’ means any director, officer, employee, controlling person (if any), representative or agent of Alpha African, her affiliates and subsidiaries;
– ‘Lagos Business Day’ means any day on which the banks in Lagos shall open for business not being a Saturday, Sunday or a public holiday
– ‘Milestone Fees’ means the breakdown of the advisory fees and when they become due and payable.
– ‘Party(ies)’ means Alpha African Advisory Limited or/and the Client
– ‘Reimbursable Expenses’ means all direct, reasonable out-of-pocket expenses incurred by the Financial Adviser in relation to the Project, including local and international travel and travel-related costs.
– ‘Services’ means the financial advisory services as agreed between Alpha African Advisory and the Client
– ‘Taxes’ means all forms of taxation, duties (including stamp duty), levies, imposts, charges and withholdings (including any related or incidental penalty, fine, interest or surcharge), whenever created or imposed, and whether required by the law or regulations of the jurisdiction of the Client (including that of its affiliates, successors and assigns) or elsewhere.
– ‘Third Party Advisers’ means any other adviser that may be required to assist Alpha African Advisory Limited in executing the scope of services agreed on between the parties.
2. Engagement
2.1. The engagement is defined in the specifications laid down in the Engagement Letter. In the event that unforeseen circumstances arise, that affect the content and/or scope of our instructions to a significant extent, AAA is entitled to renegotiate the relevant aspects of the Engagement Letter.
2.2. The Services shall be executed with reasonable skill and care.
2.3. AAA will endeavour to provide the service(s) in accordance with any schedule prearranged between the parties. Unless the Parties specifically and in writing have agreed on a final time of delivery, all dates stated by AAA in the Letter of Engagement or time sheet if any, shall be estimates only.
2.4. AAA’s ability to meet with any stipulated timelines will be partly dependent on the Client’s ability to provide necessary, relevant and timely information in aid of the execution of the services and, the Client’s turnaround time for reviewing and confirming documentation prepared.
2.5. The Client shall also provide any assistance which AAA reasonably requires in relation to the Services, including but not limited to:
i. assigning appropriate senior staff to the transaction to enable the Services to be performed effectively by AAA, by taking timely decisions on behalf of the Client with regard to the engagement and providing necessary access to resources (including key employees) of the Client as may be required by AAA;
ii. ensuring timely access to the various technical feasibility, operating assumptions, and financial reports prepared by other advisers that will be relevant in the execution of the Transaction; and
iii. making available the senior management and representatives of the Client for the purposes of making presentations, participating in meetings and providing any information or documentation which AAA may request.
3. Fees, Expenses and Charges
3.1. Invoices for fees and expenses will be presented to the Client and shall be paid by the Client within five (5) days of receipt. Invoices shall clearly state the nature/purpose of the fees or expenses, and where relevant shall be accompanied by copies of the receipts evidencing the expenses. Any invoices not paid within fifteen (15) days of receipt may, subject to the sole discretion of AAA, attract interest charges of 1.0% per month
3.2. All payments due under the Engagement Letter shall be made in the currency of invoice and in immediately available, freely transferable cleared funds to such account(s) with such bank(s) as AAA shall notify to the Client on the business day immediately preceding the invoice date and shall be free and clear of and without deduction for, any set-off, claim or tax. In the event that a claim or tax is levied, the Client will pay such additional amount as will result in AAA receiving and retaining (after any deduction or withholding) an amount equal to the payment which would have been due if no such deduction or withholding had been required or made.
3.3. The Client shall be directly responsible for the fees and expenses payable to any Third- Party Advisers duly appointed in accordance with this Engagement Contract. The Client shall also be directly responsible for all costs and expenses incurred in connection with the hosting of any external events in relation to the execution of any of the services under the Engagement Letter (e.g., market sounding or capital raise events, lenders’ meetings, negotiations with project contractors etc.). No fee or other compensation payable to the Third-Party Advisers shall reduce or otherwise affect the Advisory Fees and any Reimbursable Expenses payable to AAA.
4. External Consultants
4.1. AAA might require inputs from other suitably qualified external consultants for the performance of certain aspects of the Services, including but not limited to technical, environmental, social and legal advisers (“Third-Party Advisers”).
4.2. To the extent that such Third-Party Advisers have not yet been appointed on the Effective Date, the procurement of such Third-Party Advisers required for the service(s) shall be undertaken by the Client. AAA shall, when and to the extent required, assist the Client in the identification, selection, appointment and management of all such Third-Party Advisers to be appointed by the Client in relation to the provision of the services – such assistance to include, but shall not be limited to, the preparation of the terms of reference/scope of services for the identified consultants, based on the requirements of the Service(s).
4.3. The Client will execute the engagement letter with the Third-Party Adviser and authorise AAA to receive the benefit of the services to be provided by the Third-Party Advisers. It is agreed that AAA, acting reasonably, may also procure the engagement of Third-Party Advisers with the prior written approval of the Client.
4.4. It is understood and agreed that payment of the agreed fees and expenses incurred in respect of services rendered by such Third-Party Advisers shall be for the account of the Client. Should the Engagement Letter be terminated, the professional fees of any Third-Party Adviser incurred prior to the date of termination shall remain due and payable by the Client. No professional fees or other compensation payable to such Third-Party Advisers or to any other professional advisers engaged by the Client in the provision of services with respect to the project or transaction shall reduce or otherwise affect the Advisory Fees and any Reimbursable Expenses payable to AAA.
5. Force Majeure
5.1. The obligations of any Party, with the exception of confidentiality obligations, shall be suspended during the time and to the extent that such Party is prevented from complying with its obligations due to any unforeseeable circumstances beyond the reasonable control and which occurs without the fault or negligence of the Party so affected (a Force Majeure).
5.2. A Force Majeure includes but is not limited to floods, fire, hostilities, war (declared or undeclared), executive or administrative orders, acts of either general or particular application of any government whether de jure or de facto and any official purporting to act under the authority of any such government, insurrections, epidemics, pandemics, outbreaks of infectious diseases or any
other public health crisis, including quarantine or other restrictions to movement, explosions or, severe injury.
5.3. As soon as possible and, within five (5) days after being affected by a Force Majeure, the Party so affected shall provide the other Party with all details of the Force Majeure and the manner in which the Party’s performance is prevented or delayed. The Party whose obligations have been suspended shall also promptly take appropriate action to enable it perform its obligations.
5.4. Neither party will be deemed to be in breach of contract in cases of Force Majeure
6. Independent Contractor
The Client acknowledges that AAA has been retained hereunder solely as Financial Adviser to the Client in respect of the transaction, and not as an adviser to or agent of any other person; and that the Client engagement of AAA is as an independent contractor and not in any other capacity including as fiduciaries. Neither this engagement nor the delivery of any advice in connection with this engagement, is intended to confer rights upon any persons not a party hereto (including security holders, employees, directors or creditors of the Client) against AAA or her affiliates or its directors, officers, agents and employees.
7. Waiver of Conflict
The Client acknowledge that AAA may provide financial advisory services and/or capital raise services to other clients, or in respect of transactions similar to, or with similar objectives as the transaction in question, and the Client waives any potential claim or claim it may have in connection with any liability to which AAA may otherwise be subject with respect to conflict relating thereto. Such waiver shall be without prejudice to the confidentiality provisions set out in this Contract, and AAA shall comply with the confidentiality obligations contained therein.
8. Confidentiality
8.1. Each Party acknowledges that the documents relating to the service(s) are confidential and shall ensure that no documentation or their contents shall, without the prior written consent of the other, be disclosed to any other person except:
a. As required by law or by any applicable governmental or other regulatory authority or by any applicable stock exchange;
b. To their affiliates, employees, directors or professional advisers for the purposes of developing the Project and providing the Services, who have been made aware of and agree to be bound by the obligations under this paragraph or are in any event subject to confidentiality obligations as a matter of law, contract or professional practice;
c. Documents which are or become public knowledge through no breach of the other party of the obligations of confidentiality herein; or;
d. Information which was known to the receiving party prior to disclosure in terms hereof.
9. Limitation of Liability
9.1. The Client agrees that neither AAA, nor its directors, employees, agents, advisors, consultants or legal counsel (each, an “Indemnified Party”) will be
liable for any loss the Client might suffer or incur in connection with the Engagement Contract or the particular transaction and to reimburse such Indemnified Party for all expenses, including any legal expenses, incurred by such Indemnified Party in connection therewith or with the investigation or defence thereof; except to the extent that such Loss results from such Indemnified Party’s gross negligence or wilful misconduct as determined in a final non-appealable award of an arbitral tribunal or court of competent jurisdiction.
9.2. Any such claim will be limited to reasonably foreseeable losses arising directly from AAA’s ‘gross negligence or wilful misconduct’ in connection with the Engagement Letter, and will not include indirect losses, lost profits or consequential or punitive damages, provided always that notwithstanding any provisions to the contrary, the aggregate liability of AAA under any circumstances under the Engagement Letter shall not exceed the fees paid to AAA by the Client.
10. Notices
All notices or other communication under the Engagement Contract shall only be effective when received. Any notice or other communication under this Contract received outside working hours (being 8:00am to 5:00pm on a Lagos Business Day will be deemed not to have been sent until the start of the next period of working hours.
11. Representation
The Parties hereby represent and warrant that upon execution of the Engagement Letter, the Engagement Contract constitutes legal, binding and enforceable obligations of each Party.
12. Information
12.1. The Client represents and warrants to fully disclose all material facts and information about the project, transaction, the Client and/or affiliates. The Client further represents and warrants that:
12.1.1. any factual information provided to AAA by or on behalf of any affiliates of the Client for the purposes of the Engagement Letter (the “Information”) is true, accurate and complete in all material respects as at the date it is provided; and
12.1.2. any financial projections contained in the Information has been prepared in good faith on the basis of recent historical information and on the basis of reasonable assumptions.
12.2. The Client shall immediately notify AAA in writing if the Client becomes aware that any information provided to AAA is incorrect and misleading and agrees to supplement the information as may be required. The Client also acknowledges that, in providing the Services, AAA will rely on the information provided by the Client without carrying out any independent verification.
13. Relations with third parties and Assignment:
13.1. Nothing in the Engagement contract provides third party with any rights. No third party can invoke any provision in the Engagement contract.
13.2. No Party shall assign any of its rights or transfer any of its obligations under the Engagement Contract without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.
14. Non-Circumvention
Parties agree that they will not circumvent each other and shall abide by international standards of Non-Circumvention and Non-Disclosure. This Engagement Contract shall remain in force for 2 (Two) years and shall apply to extensions, renewals and rollovers where necessary. The Parties, including their agents and successors in title, hereby irrevocably agree not to circumvent, avoid, by-pass, or obviate each other, directly or indirectly, or avoid payments as stated in the Engagement Letter.
15. Governing Law and Dispute Resolution
15.1. This Engagement Contract will be governed by and construed in accordance with laws of the Federal Republic of Nigeria. Any dispute or disputes relating to this contract shall be referred to Arbitration in accordance with the provisions of the Arbitration and Conciliation Act, (Cap 19), Laws of the Federation of Nigeria 2004 or any statutory modification or re-enactment thereof for the time being in force.
15.2. Arbitral Proceedings shall be held in Lagos, Nigeria and the determination of such dispute or disputes shall be by a single arbitrator appointed jointly by the Parties and failing agreement, by the Chairman of the Chartered Institute of Arbitrators, Nigerian Branch.
15.3. The award of the arbitrator so appointed shall be final and binding on the Parties. The arbitrator shall have a maximum period of ten (10) business days following the Parties’ exchange of pleadings, to resolve the dispute. Any award rendered by the arbitrator shall be final and binding upon the Parties and judgment upon such award may be entered into any court having jurisdiction for a judicial confirmation of such award and judgment or order of enforcement, as the case may be.
15.4. The proceedings in the arbitration shall be kept confidential, while the Parties shall share evenly the cost of arbitration except their own respective individual costs, which they shall bear individually. Nothing however shall preclude either Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction.
16. Termination
16.1. AAA may terminate the Engagement Letter with immediate effect in the following instances:
16.1.1. the Client has not paid any of the fees or expenses payable under this letter in accordance with its terms, and such fees or expense remains outstanding for a period of at least thirty (30) calendar days following prior written notice to the Client. Any accrued Advisory Fees, whether or not invoiced, and Reimbursable Expenses incurred by AAA prior to the date of termination shall be immediately due and payable. For the avoidance of doubt, no Party shall be liable to the other for lost profits, indirect loss and consequential damages as a result of termination hereunder; and
16.1.2. the Client commits a material breach of its obligations under the Engagement Contract, which breach has not been remedied at least
fourteen (14) days from the date that AAA notifies the Client of the breach in writing.
16.2. The Client may terminate the Engagement Letter on delivery of written notice:
16.2.1. to AAA following a material breach of the Engagement Letter by AAA, provided that the Client provides AAA with fourteen (14) days’ notice to remedy the breach where such breach is capable of remedy; and
16.2.2. the Client decides, in their discretion not to pursue the Project
For the avoidance of doubt, any Advisory Fees, Reimbursable Expenses or Third-Party Adviser fees which have been incurred prior to the termination of this Engagement Letter shall be immediately due and payable by the Client.
17. Severability
If any provision or part of the Engagement Contract shall be held to be illegal, invalid or unenforceable under any enactment or rule of law, such provision or part shall to that extent be deemed not to form part of the Engagement Contract but the legality, validity and enforceability of the remainder of the Engagement Contract shall not be affected.