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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 20-F
(Mark One) ☐ REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2023
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
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SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Date of event requiring this shell company report
Commission file number 001-40876
IHS Holding Limited
(Exact Name of Registrant as Specified in its Charter)
Not Applicable
(Translation of Registrant’s Name into English)
Cayman Islands
(Jurisdiction of Incorporation or Organization)
1 Cathedral Piazza
123 Victoria Street
London SW1E 5BP
United Kingdom
(Address of Principal Executive Offices)
Sam Darwish
Chief Executive Officer
Telephone: +44 20 8106 1600
IHS Holding Limited
1 Cathedral Piazza
123 Victoria Street
London SW1E 5BP
United Kingdom
(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered, pursuant to Section 12(b) of the Act
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Name of each exchange on which registered |
Ordinary shares, par value $0.30 per share |
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The New York Stock Exchange |
Securities registered or to be registered pursuant to Section 12(g) of the Act: None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: None
Indicate the number of outstanding shares of each of the issuer’s classes of capital stock or common stock as of the close of the period covered by the annual report: 331,920,002 ordinary shares
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☒ No ☐
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. Yes ☐ No ☒
Note—Checking the box above will not relieve any registrant required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 from their obligations under those Sections.
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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☒ Large accelerated filer |
☐ Accelerated filer |
☐ Non-accelerated filer |
☐ Emerging growth company |
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to § 240.10D-1(b). □
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
☐ U.S. GAAP |
☒ International Financial Reporting Standards as issued by the International Accounting Standards Board |
☐ Other |
If “Other” has been checked in response to the previous question indicate by check mark which financial statement item the registrant has elected to follow. Item 17 ☐ Item 18 ☐
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
CONTENTS
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ITEM 1. IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS |
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ITEM 11. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
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ITEM 12. DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES |
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ITEM 14. MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS |
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ITEM 16D. EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES |
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ITEM 16E. PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS |
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ITEM 16I. DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS |
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F-1 |
ii
ABOUT THIS ANNUAL REPORT
Except where the context otherwise requires or where otherwise indicated in this Annual Report, the terms “IHS Towers,” the “Company,” “the Group,” “we,” “us,” “our,” “our company” and “our business” refer to IHS Holding Limited, together with its consolidated subsidiaries as a consolidated entity.
MARKET AND INDUSTRY DATA
We obtained the industry, market and competitive position data and forecasts in this Annual Report from our own internal estimates and research as well as from publicly available information, industry and general publications and research, surveys and studies conducted by third parties, including Euromonitor International Limited. Certain industry, market and competitive position data and information referred to in this Annual Report is based on third-party data provided by Analysys Mason Limited, or Analysys Mason, delivered in August 2023 for use in this Annual Report. This information involves a number of assumptions and limitations, and you are cautioned not to give undue weight to these estimates, as there is no assurance that any of them will be reached. Our and Analysys Mason’s data is derived from publicly available information released by independent industry analysts and other third-party sources, as well as data from our and Analysys Mason’s internal research, and are based on assumptions made by us upon reviewing such data, and our experience in, and knowledge of, such industry and markets, which we believe to be reasonable. Analysys Mason’s third party data is also prepared on the basis of information provided and views expressed by mobile operators, tower operators and other parties (including certain views expressed and information provided or published by individual operators, service providers, regulatory bodies, industry analysts and other third party sources of data). Although Analysys Mason has obtained such information from sources it believes to be reliable, neither we nor Analysys Mason have verified such information. You are cautioned not to give undue weight to these estimates and assumptions.
In many cases, there is no readily available external information (whether from trade associations, government bodies or other organizations) to validate market related analyses and estimates, requiring us to rely on our own internally developed estimates regarding the industry in which we operate, our position in the industry, our market share and the market shares of various industry participants based on our experience, our own investigation of market conditions and our review of industry publications, including information made available to the public by our competitors. While we believe our internal estimates to be reasonable, these estimates have not been verified by any independent sources and you are cautioned not to give undue weight to these estimates.
Industry publications, research, surveys and studies generally state that the information they contain has been obtained from sources believed to be reliable, but that the accuracy and completeness of such information is not guaranteed. Forecasts and other forward-looking information obtained from these sources and from our and Analysys Mason’s estimates are subject to the same qualifications and uncertainties as the other forward-looking statements in this Annual Report and as described under “Cautionary Statement Regarding Forward-Looking Statements.” These forecasts and other forward-looking information, are subject to uncertainty and risk due to a variety of factors, including those described under Item 3.D. “Risk Factors.” These and other factors could cause results to differ materially from those expressed in the forecasts or estimates from independent third parties and us.
In addition, our and Analysys Mason’s estimates involve risks and uncertainties and are subject to change based on various factors. See Item 3.D. “Risk Factors” and Item 4.B. “Information on the Company—Business Overview” for further discussion.
TRADEMARKS, SERVICE MARKS AND TRADE NAMES
We have proprietary rights to trademarks used in this Annual Report that are important to our business, many of which are registered under applicable intellectual property laws.
Solely for convenience, the trademarks, service marks, logos and trade names referred to in this Annual Report are without the ® and ™ symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable licensors to these trademarks, service marks and trade names. This Annual Report contains additional trademarks, service marks and trade names of others, which are the property of their respective owners.
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All trademarks, service marks and trade names appearing in this Annual Report are, to our knowledge, the property of their respective owners. We do not intend our use or display of other companies’ trademarks, service marks, copyrights or trade names to imply a relationship with, or endorsement or sponsorship of us by, any other companies.
PRESENTATION OF FINANCIAL AND OTHER INFORMATION
We report under International Financial Reporting Standards, or IFRS, as issued by the International Accounting Standards Board, or the IASB.
Use of Non-IFRS financial measures
Certain parts of this Annual Report contain non-IFRS financial measures, including Adjusted EBITDA and Adjusted EBITDA Margin. The non-IFRS financial information is presented for supplemental informational purposes only and should not be considered a substitute for financial information presented in accordance with IFRS, and may be different from similarly titled non-IFRS measures used by other companies.
We define Adjusted EBITDA (including by segment) as profit/(loss) for the period, before income tax expense/(benefit), finance costs and income, depreciation and amortization, impairment of withholding tax receivables, business combination transaction costs, impairment of property, plant and equipment, intangible assets excluding goodwill and related prepaid land rent on the decommissioning of sites, net (profit)/loss on sale of assets, share-based payment (credit)/expense, insurance claims, listing costs and certain other items that management believes are not indicative of the core performance of our business. The most directly comparable IFRS measure to Adjusted EBITDA is our profit/(loss) for the period.
We define Adjusted EBITDA Margin as Adjusted EBITDA divided by revenue for the applicable period, expressed as a percentage.
We believe that Adjusted EBITDA is an indicator of the operating performance of our core business. We believe Adjusted EBITDA and Adjusted EBITDA Margin, as defined above, are useful to investors and are used by our management for measuring profitability and allocating resources, because they exclude the impact of certain items which have less bearing on our core operating performance. We believe that utilizing Adjusted EBITDA and Adjusted EBITDA Margin allows for a more meaningful comparison of operating fundamentals between companies within our industry by eliminating the impact of capital structure and taxation differences between the companies.
Adjusted EBITDA measures are frequently used by securities analysts, investors and other interested parties in their evaluation of companies comparable to us, many of which present an Adjusted EBITDA-related performance measure when reporting their results.
Adjusted EBITDA and Adjusted EBITDA Margin are used by different companies for differing purposes and are often calculated in ways that reflect the circumstances of those companies. You should exercise caution in comparing Adjusted EBITDA and Adjusted EBITDA Margin as reported by us to Adjusted EBITDA and Adjusted EBITDA Margin as reported by other companies. Adjusted EBITDA and Adjusted EBITDA Margin are unaudited and have not been prepared in accordance with IFRS.
Adjusted EBITDA and Adjusted EBITDA Margin are not measures of performance under IFRS and you should not consider these as an alternative to profit/(loss) or profit/(loss) margin for the period or other financial measures determined in accordance with IFRS.
Adjusted EBITDA and Adjusted EBITDA Margin have limitations as analytical tools, and you should not consider them in isolation. Some of these limitations are:
| ● | they do not reflect interest expense, or the cash requirements necessary to service interest or principal payments, on our indebtedness; |
| ● | although depreciation and amortization are non-cash charges, the assets being depreciated and amortized will often need to be replaced in the future and Adjusted EBITDA and Adjusted EBITDA Margin do not reflect any cash requirements that would be required for such replacements; |
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| ● | some of the items we eliminate in calculating Adjusted EBITDA and Adjusted EBITDA Margin reflect cash payments that have less bearing on our core operating performance, but that impact our operating results for the applicable period; and |
| ● | the fact that other companies in our industry may calculate Adjusted EBITDA and Adjusted EBITDA Margin differently than we do, which limits their usefulness as comparative measures. |
Accordingly, investors and prospective investors should not place undue reliance on Adjusted EBITDA or Adjusted EBITDA Margin.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report contains forward-looking statements. We intend such forward-looking statements to be covered by relevant safe harbor provisions for forward-looking statements (or their equivalent) of any applicable jurisdiction, including those contained in Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). All statements other than statements of historical facts contained in this Annual Report may be forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,” “expects,” “plans,” “anticipates,” “could,” “intends,” “targets,” “projects,” “contemplates," “believes,” “estimates,” “forecast,” “predicts,” “potential” or “continue” or the negative of these terms or other similar expressions. Forward-looking statements contained in this Annual Report include, but are not limited to statements regarding our future results of operations and financial position, industry and business trends, business strategy, plans, market growth, including our ability to renew customer lease agreements or grow our business through acquisitions, the impact of the devaluation of the Naira and other economic and geopolitical factors on our future results and operations and our objectives for future operations.
We have based these forward-looking statements largely on our current expectations and projections about future events and financial trends that we believe may affect our business, financial condition and results of operations. Forward-looking statements involve known and unknown risks, uncertainties and other important factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements, including, but not limited to:
| ● | non-performance under or termination, non-renewal or material modification of our customer agreements; |
| ● | volatility in terms of timing for settlement of invoices or our inability to collect amounts due under invoices; |
| ● | a reduction in the creditworthiness and financial strength of our customers; |
| ● | the business, legal and political risks in the countries in which we operate; |
| ● | general macroeconomic conditions in the countries in which we operate; |
| ● | changes to existing or new tax laws, rates or fees; |
| ● | foreign exchange risks, particularly in relation to the Nigerian Naira, and/or ability to hedge against such risks in our commercial agreements or access U.S. Dollars in our markets; |
| ● | the effect of regional or global health pandemics, geopolitical conflicts and wars and acts of terrorism; |
| ● | our inability to successfully execute our business strategy and operating plans, including our ability to increase the number of Colocations and Lease Amendments on our Towers and construct New Sites or develop business related to adjacent telecommunications verticals (including, for example, relating to our fiber businesses in Latin America and elsewhere) or deliver on our sustainability or environmental, social and governance (ESG) strategy and initiatives under anticipated costs, timelines, and complexity, such as our Carbon Reduction Roadmap (and Project Green), including plans to reduce diesel consumption, integrate solar panel and battery storage solutions on tower sites and connect more sites to the electricity grid; |
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| ● | our reliance on third-party contractors or suppliers, including failure, underperformance or inability to provide products or services to us (in a timely manner or at all) due to sanctions regulations, supply chain issues or for other reasons; |
| ● | our estimates and assumptions and estimated operating results may differ materially from actual results; |
| ● | increases in operating expenses, including increased costs for diesel; |
| ● | failure to renew or extend our ground leases, or protect our rights to access and operate our Towers or other telecommunications infrastructure assets; |
| ● | loss of customers; |
| ● | risks related to our indebtedness; |
| ● | changes to the network deployment plans of mobile operators in the countries in which we operate; |
| ● | a reduction in demand for our services; |
| ● | the introduction of new technology reducing the need for tower infrastructure and/or adjacent telecommunication verticals; |
| ● | an increase in competition in the telecommunications tower infrastructure industry and/or adjacent telecommunication verticals; |
| ● | our failure to integrate recent or future acquisitions; |
| ● | the identification by management of material weaknesses in our internal control over financial reporting, which could affect our ability to produce accurate financial statements on a timely basis or cause us to fail to meet our future reporting obligations; |
| ● | increased costs, harm to reputation, or other adverse impacts related to increased intention to and evolving expectations for environmental, social and governance initiatives; |
| ● | our reliance on our senior management team and/or key employees; |
| ● | failure to obtain required approvals and licenses for some of our sites or businesses or comply with applicable regulations; |
| ● | inability to raise financing to fund future growth opportunities or operating expense reduction strategies; |
| ● | environmental liability; |
| ● | inadequate insurance coverage, property loss and unforeseen business interruption; |
| ● | compliance with or violations (or alleged violations) of laws, regulations and sanctions, including but not limited to those relating to telecommunications regulatory systems, tax, labor, employment (including new minimum wage regulations), unions, health and safety, antitrust and competition, environmental protection, consumer protection, data privacy and protection, import/export, foreign exchange or currency, and of anti-bribery, anti-corruption and/or money laundering laws, sanctions and regulations; |
| ● | fluctuations in global prices for diesel or other materials; |
| ● | disruptions in our supply of diesel or other materials; |
| ● | legal and arbitration proceedings; |
| ● | our reliance on shareholder support (including to invest in growth opportunities) and related party transaction risks; |
| ● | risks related to the markets in which we operate, including but not limited to local community opposition to some of our sites or infrastructure, and the risks from our investments into emerging and other less developed markets; |
| ● | injury, illness or death of employees, contractors or third parties arising from health and safety incidents; |
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| ● | loss or damage of assets due to security issues or civil commotion; |
| ● | loss or damage resulting from attacks on any information technology system or software; |
| ● | loss or damage of assets due to extreme weather events whether or not due to climate change; |
| ● | failure to meet the requirements of accurate and timely financial reporting and/or meet the standards of internal control over financial reporting that support a clean certification under the Sarbanes Oxley Act; |
| ● | risks related to our status as a foreign private issuer; and |
| ● | the important factors discussed in the section titled “Risk Factors” in this Annual Report. |
The forward-looking statements in this Annual Report are based upon information available to us as of the date of this Annual Report, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements. You should read this Annual Report and the documents that we reference in this Annual Report with the understanding that our actual future results, performance and achievements may be materially different from what we expect. We qualify all of our forward-looking statements by these cautionary statements. Additionally, we may provide information herein that is not necessarily “material” under the federal securities laws for SEC reporting purposes, but that is informed by various ESG standards and frameworks (including standards for the measurement of underlying data), and the interests of various stakeholders. Much of this information is subject to assumptions, estimates or third-party information that is still evolving and subject to change. For example, we note that standards and expectations regarding greenhouse gas (GHG) accounting and the processes for measuring and counting GHG emissions and GHG emissions reductions are evolving, and it is possible that our approaches both to measuring our emissions and any reductions may be at some point, either currently or in future, considered by certain parties to not be in keeping with best practices. In addition, our disclosures based on any standards may change due to revisions in framework requirements, availability of information, changes in our business or applicable government policies, or other factors, some of which may be beyond our control. These forward-looking statements speak only as of the date of this Annual Report. Except as required by applicable law, we do not assume, and expressly disclaim, any obligation to publicly update or revise any forward-looking statements contained in this Annual Report, whether as a result of any new information, future events or otherwise. Additionally, references to our website and other documents contained in this Annual Report are provided for convenience only, and their content is not incorporated by reference into this Annual Report.
CERTAIN DEFINED TERMS
Unless the context provides otherwise, references herein to:
| ● | “2025 Notes” refers to our $510 million 7.125% Senior Notes due 2025, which were fully repaid in November 2021. |
| ● | “2026 Notes” refers to our $500 million 5.625% Senior Notes due 2026. |
| ● | “2027 Notes” refers to our $940 million 8.0% Senior Notes due 2027. |
| ● | “2028 Notes” refers to our $500 million 6.250% Senior Notes due 2028. |
| ● | “9mobile” refers to Emerging Markets Telecommunication Services Limited, which was previously known as Etisalat Nigeria. |
| ● | “Airtel Nigeria” refers to Airtel Networks Limited, a subsidiary of Airtel Africa. |
| ● | “Brazilian Real” and “BRL” refers to the lawful currency of the Federative Republic of Brazil. |
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| ● | “Carbon Reduction Roadmap” refers to our strategy for decreasing our emissions, including a goal to reduce the Scope 1 and Scope 2 kilowatt-hour emissions intensity of our tower portfolio by 50% by 2030, using 2021 emissions data as the baseline. |
| ● | “CBN” refers to the Central Bank of Nigeria. |
| ● | “Centennial Acquisition” refers to the acquisition by us on March 19, 2021 of Centennial Colombia and the acquisition by us on April 8, 2021 of Centennial Brazil, both from affiliates of Centennial Towers Holding LP. At closing, Centennial Colombia had 217 towers and Centennial Brazil had 602 towers. |
| ● | “Centennial Brazil” refers to Centennial Towers Brasil Coöperatief U.A. and its subsidiaries. |
| ● | “Centennial Colombia” refers to Centennial Towers Colombia, S.A.S. and its subsidiaries. |
| ● | “CSS” refers to Cell Sites Solutions — Cessão de Infraestruturas S.A. |
| ● | “CSS Acquisition” refers to the acquisition by us on February 18, 2020 of CSS from affiliates of Goldman Sachs and Centaurus Capital LP. At closing, CSS had 2,312 towers, including 2,251 towers in Brazil, 51 in Peru and 10 in Colombia. |
| ● | “Churn” refers to the loss of tenancies when services provided by us are terminated, a Tenant does not renew its contract or we have ceased recognizing revenue for sites under a customer’s contract in any particular period, adjusted for the reintegration of previously lost tenancies. When we decommission a site and move a customer from one of our sites to another site to rationalize our portfolio, this is not included in Churn. |
| ● | “Colocation” refers to the installation of equipment on existing towers for a new tenant alongside current Tenants. |
| ● | “Colocation Rate” refers to the average number of Tenants per Tower across our portfolio at a given point in time. We calculate the Colocation Rate by dividing the total number of Tenants across our portfolio by the total number of Towers across our portfolio at a given time. |
| ● | “Contracted Revenue” refers to lease fees to be received from the existing Tenants of Key Customers for the remainder of each Tenant’s current contractual site lease term, lease fees to be received from the existing Lease Amendments of Key Customers for the remainder of each Lease Amendment’s current contractual term and lease fees to be received from Key Customers where we provide fiber access to an OLT for the remainder of the relevant contractual term, as of a specified date. In aggregating Contracted Revenue, we have taken the average lease rate for our Key Customers as of December 31, 2023, which is applied to the remaining term of the tenancies, lease amendments and fiber access of each Key Customer, assuming constant foreign exchange rates, no escalation of lease rates despite contractual provisions in our MLAs in that regard, no new Tenants, new Lease Amendments or new access to fiber, no amendments to our existing MLA terms and no Churn. See “Risk Factors — Our Contracted Revenue is based on certain estimates and assumptions and actual results may differ materially from such estimated operating results.” |
| ● | “Dollar”, “USD” or “$” refer to U.S. dollars. |
| ● | “Egypt Transaction” refers to a partnership agreement entered into in October 2021 with Egypt Digital Company for Investment S.A.E., an investment vehicle of the Egyptian Ministry of Communications, to form a joint venture, IHS Telecom Towers Egypt S.A.E., or IHS Egypt, which obtained a license from the National Telecom Regulatory Authority (“NTRA”) to construct, operate and lease telecom towers in Egypt. Under the terms of the license, and subject to the fulfillment of certain conditions, IHS Egypt has a commitment to a coverage plan of 5,800 sites over a three-year period. IHS Towers owns 80% of IHS Egypt and Egypt Digital Company for Investment owns the remaining 20%. |
| ● | “euro” or “€” refer to the currency introduced at the start of the third stage of European economic and monetary union pursuant to the treaty establishing the European Community, as amended. |
| ● | “GTS SP5 Acquisition” refers to acquisition by us on March 17, 2022 of São Paulo Cinco Locação de Torres Ltda (“GTS SP5”). At closing, GTS SP5 had 2,115 towers in Brazil. |
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| ● | “IFRS” refers to International Financial Reporting Standards which have been developed by the International Accounting Standards Board (“IASB”). |
| ● | “IHS Holding Limited Notes” refers to our 2026 Notes and our 2028 Notes, collectively. |
| ● | “IHS Netherlands Holdco B.V. Notes” refers to our 2027 Notes. |
| ● | “IHS Nigeria” refers to IHS (Nigeria) Limited, one of our operating subsidiaries in Nigeria. |
| ● | “INT Towers” refers to INT Towers Limited, one of our operating subsidiaries in Nigeria. |
| ● | “Key Customers” refers to MTN Customers, Orange Cameroun S.A., or Orange Cameroon, Orange Côte d’Ivoire S.A., or Orange Côte d’Ivoire, 9mobile, Airtel Nigeria, Airtel Networks Zambia PLC, or Airtel Zambia, Airtel Rwanda Limited, or Airtel Rwanda, Claro S.A., or Claro Brazil, TIM Cellular S.A., or TIM Brasil, Telefonica Brasil S.A., or Vivo Brazil, Colombia Móvile S.A. E.S.P., or Tigo Colombia, COMSEL S.A., or Claro Colombia, Oi S.A., or Oi Brazil, Zain Kuwait and Telkom South Africa. |
| ● | “Kuwait Acquisition” refers to the acquisition by us of an aggregate of 1,499 towers from Zain Kuwait, following the completion of multiple closings pursuant to an acquisition signed in October 2017. As part of the transaction, some towers that we have not purchased are managed and operated under a Managed Services agreement, and currently comprise approximately 121 towers. These towers are operated in Kuwait through an entity in which we own 70% of the shares and Zain Kuwait owns the remaining 30%. |
| ● | "Latam” refers to our business segment that includes our markets in Latin America, which currently are Brazil, Colombia and Peru. |
| ● | “Lease Amendments” refers to the installation of additional equipment on a site or the provision of certain ancillary services for an existing Tenant, for which we charge our customers a recurring lease fee. |
| ● | “LTE” refers to long-term evolution, a standard for high-speed wireless communication for mobile devices and data terminals. We refer to LTE and 4G interchangeably in this Annual Report. |
| ● | “Managed Services” refers to when MNOs outsource the day-to-day operations of their owned towers or other towers on which they are present, including maintenance, security and power supply. |
| ● | "MENA” refers to our business segment that includes our markets in the Middle East and North Africa region, which currently are Egypt and Kuwait. |
| ● | “MLA” refers to the long-term lease agreements we enter into with our customers, including but not limited to master lease agreements, master services agreements, infrastructure sharing agreements, master tower space use/license agreements and MLL agreements. |
| ● | “MLL” refers to towers we manage with a license to lease for a defined period. Where there is an MLL agreement, we have the right to lease out space on the tower to other MNOs and provide services, generating further revenue for ourselves. The site owner typically reduces its operating costs and eliminates capital expenditures. |
| ● | “MNOs” refers to mobile network operators. |
| ● | “MTN Customers” refers to MTN Nigeria, MTN Côte d’Ivoire S.A., or MTN Côte d’Ivoire, MTN Cameroon Limited, or MTN Cameroon, MTN Zambia Limited, or MTN Zambia, MTN Rwandacell Limited, or MTN Rwanda or MTN South Africa. |
| ● | “MTN Group” refers to MTN Group Limited and its subsidiaries, one of which is one of our shareholders as well as a related party of certain MTN operating entities that are our customers in the countries in which we currently operate. In each African market in which we currently operate, one of the MTN operating entities is a customer of ours. |
| ● | “MTN Nigeria” refers to MTN Nigeria Communications PLC. |
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| ● | “MTN SA Acquisition” refers to the acquisition of 5,691 towers from MTN South Africa on May 31, 2022. As part of the transaction, we are also required to provide Managed Services, including to approximately 7,100 additional MTN South Africa sites. IHS Towers will over time own 70% of the South African Towers business with the remaining 30% owned by a B-BBEE consortium. |
| ● | “MTN South Africa” refers to Mobile Telephone Networks Proprietary Limited. |
| ● | “NAFEM” refers to the Nigerian Autonomous Foreign Exchange Rate Fixing Market introduced by the CBN in October 2023 to rename the Investors’ and Exporters’ foreign exchange trading window implemented by the Central Bank of Nigeria in April 2017. |
| ● | “NAFEX” refers to the Nigerian Autonomous Foreign Exchange Rate Fixing and is the reference rate for spot FX operations in the Autonomous FX Market in Nigeria. |
| ● | “Naira”, “NGN” and “₦” refers to the lawful currency of the Federal Republic of Nigeria. |
| ● | “New Sites” refers to Towers owned and operated by the Group constructed through build-to-suit arrangements for the initial Tenant. |
| ● | “Notes” refers to the IHS Holding Limited Notes and IHS Netherlands Holdco B.V. Notes, collectively. |
| ● | “OLT” refers to an optical line terminal or optical line termination, which is a device which serves as the service provider endpoint of a passive optical network. |
| ● | “Project Green” refers to the current phase of our Carbon Reduction Roadmap. |
| ● | “Prospectus” refers to the final prospectus of IHS Holding Limited, dated October 13, 2021, filed with the Securities and Exchange Commission (“SEC”) in accordance with Rule 424(b) of the Securities Act on October 15, 2021. |
| ● | “ROU” refers to towers we operate under a right of use agreement for a defined period. Where there is an ROU agreement, we have the right to lease out space on the tower to other MNOs and provide services, generating further revenue for ourselves. |
| ● | “South African Rand” and “ZAR” refers to the lawful currency of the Republic of South Africa. |
| ● | “sites” refers to towers that are owned or operated by us. |
| ● | “Skysites” refers to Skysites Holdings S.A. |
| ● | “Skysites Acquisition” refers to the acquisition by us on January 6, 2021 of Skysites from a group of eighteen persons. At closing, Skysites had 1,005 towers in Brazil. |
| ● | “SLAs” refer to site-specific documents or agreements entered into in relation to specific sites pursuant to an MLA. |
| ● | “SSA” refers to our business segment that includes our markets in the Sub-Saharan region of Africa, which currently are Cameroon, Côte d’Ivoire, Rwanda, South Africa and Zambia. |
| ● | “subscribers” refers to the number of active subscriber identification module, or SIM, cards in service rather than the number of services provided (excluding machine to machine connections). For example, if a subscriber has both a data and voice plan on a smartphone this would equate to one subscriber. Alternatively, a subscriber who has a data and voice plan for a smartphone and a data plan for a tablet would be counted as two subscribers. |
| ● | “Tenants” refers to the number of distinct customers who have leased space on each Tower across our portfolio. For example, if one customer had leased tower space on five of our Towers, we would have five Tenants. |
| ● | “TIM Fiber Acquisition” refers to the acquisition and deployment of TIM Brasil’s secondary fiber network infrastructure. Closing occurred on November 16, 2021. The existing and future fiber assets are operated in Brazil through a new entity, which we refer to as I-Systems, in which we own 51% of the shares and TIM Brasil owns the remaining 49%. |
| ● | “TIM Brasil” refers to TIM S.A. |
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| ● | “Towers” refers to ground-based towers, rooftop and wall-mounted towers, cell poles, in-building solutions, small cells, distributed antenna systems and cells-on-wheels, each of which is deployed to support wireless transmission equipment. We measure the number of Towers in our portfolio at a given time by counting the number of Towers that we own or operate with at least one Tenant. The number of Towers in our portfolio excludes any towers for which we provide managed services. |
| ● | “Zain Kuwait” refers to Mobile Telecommunications Company K.S.C.P. |
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PART I
Item 1. Identity of Directors, Senior Management and Advisers
Not applicable.
Item 2. Offer Statistics and Expected Timetable
Not applicable.
Item 3. Key Information
A. Reserved.
B. Capitalization and Indebtedness
Not applicable.
C. Reasons for the Offer and Use of Proceeds
Not applicable.
D. Risk Factors
You should carefully consider the risks described below before making an investment decision. Additional risks not presently known to us or that we currently deem immaterial may also impair our business operations. Our business, financial condition or results of operations could be adversely affected by any of these risks. The trading price and value of our ordinary shares could decline due to any of these risks, and you may lose all or part of your investment. This Annual Report also contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks faced by us described below and elsewhere in this Annual Report.
Risks Relating to Our Business
A significant portion of our revenue is derived from a small number of MNOs. Non-performance under or termination, non-renewal or material modification of customer lease agreements with these customers could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
A significant portion of our revenue in each of our markets of operation is derived from a small number of customers, who usually constitute some of the largest MNOs in those markets. In particular, for the years ended December 31, 2023 and 2022, revenue from our top three MNO customers, considered in each of our individual markets of operation, collectively accounted for 97% and 97%, respectively, of our consolidated revenue, with MTN Nigeria and Airtel Nigeria accounting for 46% and 14%, respectively, of our consolidated revenue for the year ended December 31, 2023. Should there be any negative impact on the businesses of our major customers, including these key MNOs, including as a result of global economic conditions, it could adversely affect their demand for tower space and/or ability to perform their obligations under their lease agreements with us.
Due to the long-term nature of our MLAs (usually 5 to 10 years with subsequent renewal provisions), we are also dependent on the continued financial strength of our customers. Some customers may operate with substantial leverage and/or rely on capital-raising to fund their operations and such customers may not have sufficient credit support or the ability to raise capital. If, for example, our customers or potential customers are unable to raise adequate capital to fund their business plans, including as a result of events with a wide-ranging regional or global impact (including health pandemics or epidemics) or economic conditions or if they do not have adequate parental support, they may reduce their capital spending, which could materially and adversely affect demand for space on our Tower sites or other infrastructure, which in turn could have a material adverse effect on our financial condition and/or results of operations.
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Furthermore, some of our customers have or may become subject to regulatory or other action, which may result in unanticipated levies or fines. For example, in 2018, the CBN raised allegations of improper repatriation by MTN Nigeria Communications PLC, or MTN Nigeria, of $8.1 billion between 2007 and 2015 relating to a private placement of shares (which matter was ultimately resolved), and until January 2020, MTN Nigeria was involved in a $2 billion dispute with Nigeria’s Attorney General regarding a demand for allegedly unpaid tax, which was subsequently referred to the Nigeria Federal Inland Revenue Service, or FIRS, and the Nigeria Customs Service. In October 2023, it was reported that Nigeria’s Tax Appeal Tribunal decided a tax dispute between the FIRS and MTN Nigeria in FIRS’ favor and ordered MTN to pay the FIRS a VAT assessment of US$72.6 million. MTN in response to the ruling issued a statement published on the Nigerian Exchange platform, NGX, claiming that the tribunal upheld a principal liability of US$47.8 million and it would be appealing the decision. Any fines levied against our customers, their inability to fund their operations or other financial difficulties experienced by our customers could negatively affect their demand for tower space or their ability to perform their obligations under their lease agreements with us, and in turn could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
In addition, in 2017 Emerging Markets Telecommunication Services Limited, or 9mobile, previously known as Etisalat Nigeria, one of our Key Customers in Nigeria, experienced certain payment issues with lenders, which ultimately resulted in the lenders enforcing their security rights over shares in 9mobile previously held by Etisalat Group (Emirates Telecommunications Group Company PJSC). The current ownership status of 9mobile is in transition, and while we continue to engage with 9mobile as a regular customer and receive payments from 9mobile (including a $48 million non-recurring payment in 2023, adjusted for withholding tax, for services provided but for which revenue had not been recognized, and payments pursuant to discussions on a payment plan), 9mobile has failed to make full monthly payments to us in the past and any continued or future failure to make payments (including pursuant to any new arrangements entered into to try and resolve the situation) may result in us not receiving payment of amounts owed to us and further potential renegotiation of contract terms. See “— We may experience volatility in terms of timing for settlement of invoices or may be unable to collect amounts due under invoices.” These circumstances may, in turn, have a material adverse effect on our business, prospects, financial condition and/or results of operations. For the years ended December 31, 2023 and 2022, 9mobile accounted for 5% (including one-off revenues of $48 million) and 4% of our revenue generated, respectively.
In addition, if any of our customers are unwilling or unable to perform their obligations under the relevant tower lease or other customer agreements, including as a result of events with a wide-ranging regional or global impact, or related events (such as regulatory interventions on pricing to make MNO services more accessible, for example, during periods of lockdown or restricted movement or operations), our revenue, financial condition and/or results of operations could be adversely affected. In the ordinary course of our business, we do occasionally experience disputes with our customers, generally regarding the interpretation of terms in our lease agreements. From time to time, we also undertake routine revenue assurance exercises to determine that all customer equipment on site and services being provided to the customers are being accurately invoiced according to our contracts, and occasionally, we locate equipment that we have not previously invoiced to customers that we believe we are contractually able to invoice. Historically, we have sought to resolve these disputes in an amicable manner, and such disputes have not had a material adverse effect on our customer relationships or our business. However, it is possible that such disputes could lead to a termination (or non-renewal) of our lease agreements with customers, a material modification of the terms of those lease agreements or a failure to obtain new business from existing customers, any of which could have a material adverse effect on our business, prospects, financial condition and/or results of operations. Furthermore, if we are forced to resolve any of these disputes through litigation or arbitration, our relationship with the applicable customer could be terminated or damaged, which could lead to decreased revenue or increased costs, which may in turn result in a material adverse effect on our business, prospects, financial condition and/or results of operations.
Our customers may fail to meet their payment obligations on a timely basis or at all. Such failures to pay, payment delays or other non-performance may be due to a customer’s insolvency or bankruptcy, a downturn in the economic cycle or factors specific to the relevant customer. For instance, in March 2023, Oi Brazil filed for a new judicial reorganization proceeding, listing our contract related to the GTS SP5 Acquisition among Oi Brazil’s debts. It is currently unclear how any such reorganization proceeding will impact Oi Brazil as a customer. The failure of our customers to meet their payment obligations and/or our inability to find new customers in a timely manner could have a material adverse effect on our financial condition and/or results of operations.
No assurance can be given that our customers will renew their customer lease agreements upon expiration of those agreements or that customers will not request unfavorable amendments to existing agreements. While a number of the MLAs with our customers are deemed automatically renewed or continue in effect on a month-to-month basis, under the same contractual provisions, if not canceled by the stated expiration date, we regularly keep upcoming renewal or expiry dates under review, and engage in discussions with customers from time-to-time regarding such matters. For instance, MLAs with certain customers in Nigeria, Rwanda and Zambia are up for renewal in 2024 and MLAs with certain customers
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in Rwanda, South Africa and Zambia are up for renewal in 2025. No assurance can be given that we will be successful in renewing or negotiating favorable terms with these or other customers, or that we will not be required to enter into interim continuation provisions with these customers if we are unable to agree to renewal agreements prior to the expiry of our current agreements. For example, in September 2023, MTN Nigeria issued a statement that it has selected ATC Nigeria Wireless Infrastructure Solutions Limited to provide services to approximately 2,500 sites that are currently owned and managed by IHS Nigeria pursuant to lease agreements that are due to expire in 2024 and 2025. Any failure to obtain renewals of existing customer lease agreements or failure to successfully negotiate favorable terms for such renewals of or amendments to existing agreements (if sought) could result in a reduction in revenue and, accordingly, have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We may experience volatility in terms of timing for settlement of invoices or may be unable to collect amounts due under invoices.
Our contractual invoicing cycle is typically monthly in arrears or monthly or quarterly in advance, with the contractual payment cycle on average 30 to 60 days post invoice. As of December 31, 2023, we had gross receivables more than 90 days overdue of $40.4 million and held an impairment provision allowance of $21.2 million. While we may continue to pursue our contractual rights in collecting outstanding amounts, should the relevant counterparties be unable to meet their obligations to pay us any such sums in a timely manner, this could have a material adverse effect on our business, prospects, financial condition and/or results of operations, including planned working capital requirements. In addition, if our customers experience financial difficulties, as a result of regulatory actions, events with a wide-ranging regional or global impact (including health pandemics or epidemics), global economic conditions, prolonged economic downturn, inability to raise funds or capital, or for any other reason, we may be unable to collect amounts due under invoices from those customers, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Our current and future markets involve additional risks compared to more developed markets, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We and our customers operate in various international markets, particularly in emerging markets such as in Africa, the Middle East and Latin America. As a result, we may, directly or indirectly, be exposed to economic, political and other uncertainties, including, but not limited to, risks of:
| ● | general political and/or economic conditions, including any deterioration thereof, impacting our existing or anticipated markets of operation, such as the effects of outbreaks or events with a wide-ranging regional or global impact (including health pandemics or epidemics), geopolitical conflicts and wars (whether local, regional or international), or as a result of changes in the price of commodities, examples of which include the historical declines in copper prices that adversely affected Zambia’s economy or the volatility of oil price markets that have adversely affected economies such as Nigeria’s; |
| ● | inflation and measures taken to control inflation; |
| ● | civil strikes, acts of war, terrorism, insurrection and incidents of general lawlessness; |
| ● | acts of piracy or vandalism; |
| ● | significant governmental influence over (or intervention in) many aspects of local economies, including, but not limited to, import-export quotas, subsidies on certain input products, license requirements or restrictions, or wage and price controls, or the imposition of trade barriers; |
| ● | telecommunications regulatory systems and/or competition regimes regulating our or our customers’ services, or our ability to invest further in particular markets as a result of antitrust regimes that may, for example, impact us due to our ultimate shareholders also investing in other, ancillary businesses in the same market or determining our market share is too large, requiring sales of assets or other restrictions that impact our business; |
| ● | laws or regulations that tax or otherwise restrict repatriation of earnings or other funds or otherwise limit distributions of capital; |
| ● | laws or regulations that restrict foreign investment or indigenous ownership laws, or expropriation or governmental regulation restricting foreign ownership or requiring divestiture; |
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| ● | uncertain tax regimes and inconsistent income taxation, or changes to existing or new tax laws, rates or fees, either generally or directed specifically at the ownership and operation of towers, communications infrastructure or our international acquisitions or other transactions and operations, which may also be applied or enforced retroactively; |
| ● | changes to zoning regulations or construction laws, which could also be applied retroactively to our existing sites or infrastructure; |
| ● | actions restricting or revoking spectrum or other licenses or suspending business under prior licenses; |
| ● | security and safety of employees, and material site security issues; |
| ● | inability to secure rights or access to the land necessary to execute customer orders for New Sites and for new fiber roll-out; |
| ● | significant license or permit surcharges; |
| ● | difficulties in staffing and managing operations, labor unrest or unionization action (including in relation to the business of any third-party supplier or customer), or changes in labor conditions (including, but not limited to, increases in the cost of labor, as a result of unionization or otherwise); |
| ● | seizure, nationalization or expropriation of property, equipment or other assets; |
| ● | repudiation, nullification, modification or renegotiation of contracts; |
| ● | limitations on insurance coverage, such as political risk or war risk coverage, in certain areas; |
| ● | political or social unrest, whether internal, local, tribal, regional or otherwise; |
| ● | local, foreign and/or U.S. monetary policy and foreign currency fluctuations and devaluations, changes in foreign currency exchange rates, restrictive foreign exchange regulations (including, for example, restrictions on the transfer of funds into or out of countries in which we operate) and/or illiquidity in the foreign exchange markets (such as the historic and recent fluctuations in the Naira, and the ongoing significant shortage of U.S. dollar liquidity in Nigeria); |
| ● | price setting or other similar laws for the sharing of passive communications infrastructure, or requirements to construct New Sites in remote or rural areas that are less commercially viable for us; |
| ● | logistical and communications challenges, complications associated with repairing and replacing equipment in remote locations, or supply chain issues arising out of global or geopolitical issues, such as operational and transport restrictions or challenges; |
| ● | equipment failure, grid unavailability, planned and unplanned outages, fires, natural catastrophes or climate-related events, accidents and infrastructure that lead to network failure; |
| ● | U.S. and foreign sanctions, trade embargoes or export control restrictions; |
| ● | failure to comply with U.S. Treasury and other internationally recognized sanctions regulations restricting doing business with certain nations or specially designated nationals; |
| ● | failure to comply with anti-bribery, anti-corruption or money laundering laws and regulations such as the Foreign Corrupt Practices Act, the UK Bribery Act or similar international or local anti-bribery, anti-corruption or money laundering laws and regulations, or Office of Foreign Assets Control requirements; |
| ● | potential adverse or unforeseen changes in laws and regulatory practices, or inconsistent or unpredictable application of laws or regulations by governmental authorities, including financial regulators; |
| ● | uncertain rulings or results from legal or judicial systems, including inconsistencies between and within laws, regulations and decrees, and judicial application thereof, which may be enforced retroactively, and delays in the judicial process; |
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| ● | actions, proceedings, claims, disputes and threats brought by governments, regulators, entities or individuals for fees, taxes or other payments, even if meritless or frivolous under applicable law; |
| ● | regulatory or financial requirements to comply with bureaucratic actions; |
| ● | changes to existing laws or new laws, and/or changing labor and taxation laws or policies, including confiscatory taxation; |
| ● | other forms of government regulation and economic conditions that are beyond our control; |
| ● | governmental corruption, consequences of poorly designed and executed government policies, corrupt practices (or alleged corrupt practices) on the economy in general or particular industries or companies, or of ineffective or insufficient corporate governance standards and practices; and |
| ● | higher volatility of our ordinary share price. |
Any of these or other risks could adversely impact our customers’ and/or our operations, which, in turn, could have a material adverse effect on our business, prospects, financial condition and/or results of operations, as well as our growth opportunities. In particular, a significant portion of our revenue is currently derived from our Nigerian operations (65.0% of our revenue for the year ended December 31, 2023), and any such risks materializing within Nigeria in particular may have a significant impact on our business as a whole, including our business, prospects, financial condition and/or results of operations.
Operations in international markets, including emerging and less developed markets (including Africa, the Middle East and Latin America), also subject us to numerous additional and different laws and regulations affecting our business, such as those related to labor, employment, unions, health and safety, antitrust and competition, environmental protection, consumer protection, import/export and anti-bribery, corruption and money laundering. Our employees, subcontractors and agents could take actions that violate any of these requirements. Violations, or alleged violations, of any such laws or regulations could subject us to criminal or civil enforcement actions and adversely affect our reputation, any of which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Our expansion into new geographic markets, such as Latin America and South Africa, and other markets we may enter in the future, may present competitive, distribution, regulatory and other challenges that differ from the challenges we face in markets that we have historically operated in. In addition, we may be less familiar with the customers, competitive dynamics (including antitrust concepts or regimes that may be based on our ultimate group shareholding and that may limit our ability to make future investments, due to, for example, our ultimate shareholders also investing in other ancillary businesses in the same market, which regulatory authorities in some markets may view as impacting their antitrust considerations) and regulatory environment in these markets and may ultimately face different or additional risks, as well as increased or unexpected costs, compared to those we experience in our existing markets. Expansion into new geographic markets may also expose us to direct competition with companies with whom we have limited or no past experience as competitors. To the extent we rely upon expanding into new geographic markets and do not meet, or are unprepared for, any new challenges posed by such expansion, our future sales growth could be negatively impacted, our operating costs could increase, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations. See also “Risks Relating to the Markets in which We Operate.”
We and our customers face foreign exchange risks, which may be material.
For the years ended December 31, 2023 and 2022, 49% and 52%, respectively, of our revenue was linked to the U.S. dollar or in euro-pegged currencies. The manner in which this revenue is linked to the U.S. dollar or the euro differs across our MLAs and jurisdictions of operation.
Our U.S. dollar-linked revenue is denominated in U.S. dollars in the relevant MLAs, but paid to us in local currency through contractual mechanisms. In such cases, including the majority of our MLAs in Nigeria, our MLAs may contain a formula for periodically determining the U.S. dollar to local currency exchange rate. Such MLAs typically have U.S. dollar-denominated components and local currency components of pricing, and the U.S. dollar components are converted to the local currency for settlement at a fixed conversion rate for a stated period of time, which conversion rates are reset monthly, quarterly and semi-annually. As a result, in the event of devaluation, such as the one that occurred in June 2023 in Nigeria, there is a risk of a delay between the timing of the devaluation and the next contractual reset, which may be significant.
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During the period between the date of the devaluation and the date of the reset, all of our revenue (i.e., both revenue that is contractually linked to the U.S. dollar and that is contractually linked to local currency) would reflect the new, devalued foreign exchange rate. When the reset is effected, the amount relating to the portion of the lease fees linked to the U.S. dollar, which is invoiced in local currency, is adjusted upward at the relevant time. Furthermore, our ability to maintain or enter into such contractually linked foreign exchange protection mechanisms with our current and new customers in the future is not assured, which may in turn reduce our protection against fluctuations in foreign exchange rates and therefore could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
In addition, the conversion rates included in our MLAs may also be different from the rates at which our financial results are translated into U.S. dollars for reporting purposes. If we are required to use a higher rate for accounting purposes than that of our contracts, notwithstanding any underlying performance, it is likely that our financial results for the relevant periods in the future will show a related decline in performance. For example, as described below under “— The existence of multiple foreign exchange markets with different exchange rates may impact the rate at which our operating subsidiaries’ financial results are translated into U.S. dollars for group reporting purposes, which may impact our financial condition and/or results of operations,” in April 2017 the CBN introduced a new foreign exchange window for investors and exporters (the I&E window, now referred to as NAFEM), and while certain of our contracts in Nigeria contain contractually linked foreign exchange protection mechanisms that are intended to protect against foreign exchange fluctuations, such contracts historically only protected against changes in the official CBN exchange rate. While we reached agreement with our Key Customers in Nigeria to update the reference exchange rate in our contracts to the prevailing market rate available on Bloomberg (which is currently approximately aligned to the NAFEM rate), should these and similar circumstances arise again (where there is a divergence between the applicable market rate or translation rates for our financial results, and the exchange rate reflected in our contracts with customers), there is no guarantee that we will be able to renegotiate these contracts or enter into new contracts to fully protect against such foreign exchange risks, which could materially impact our results of operations. For instance, in June 2023, the CBN announced the unification of all segments of the foreign exchange market by replacing the old regime of multiple exchange rate “windows” for different purposes with, in effect, a market rate. The unification of the Nigeria foreign exchange market was aimed at eliminating multiple “windows” and to allow foreign exchange transactions to be determined by market forces via a single I&E window (now referred to as NAFEM). Despite these efforts, the Naira depreciated significantly against the U.S. dollar and from June 14, 2023 to December 31, 2023, the NAFEM rate depreciated by 47.7%, from approximately ₦474.0 to $1.00 to approximately ₦907.1 to $1.00, while the Bloomberg rate depreciated by 48.2%, from approximately ₦472.3 to $1.00 to approximately ₦911.7 to $1.00 during the same period. In addition, some of our contracts, particularly in Latin America, South Africa and Kuwait, are based on local currency pricing with no direct foreign exchange link or conversion mechanism, and therefore any depreciation in local currency rates against the U.S. dollar would similarly impact our financial results when they are translated into U.S. dollars for reporting purposes, notwithstanding any underlying performance.
Certain of our other MLAs have revenue components linked to hard currencies, such as the U.S. dollar or the euro, because the MLAs are in local currencies that maintain a fixed exchange rate, or are “pegged,” to such currencies, such as those in Côte d’Ivoire and Cameroon. In addition, it was announced in 2019 that the CFA Franc used in the West African Economic and Monetary Union (UEMOA), which includes Côte d’Ivoire, and which has a fixed exchange rate to the euro, would be replaced by a new currency called the Eco, and in June 2021, the heads of state of fifteen West African countries, including Côte d’Ivoire, comprising the Economic Community of West African States adopted a roadmap for the launch of the Eco in 2027. If such fixed or linked exchange rates are not maintained or are “de-pegged,” it could result in fluctuations and/or devaluations of these currencies, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
In addition, even though our MLAs may have foreign currency-linked revenue components, or have use fees expressed in foreign currencies, the actual currency of settlement of a significant portion of our revenue is in local currencies, and we therefore remain exposed to foreign exchange risks. There may also be regulatory actions or pressure based on, among other things, socioeconomic or political reasons or events, to enforce local currency-based pricing, which would dilute any protection we may seek to include in our contracts to protect against local currency devaluations.
Most of our expenses are in the local currencies of the relevant jurisdiction of operation, except for certain of our borrowings, which are predominantly in U.S. dollars. For example, our Notes and some of our other indebtedness (for example, the IHS Holding 2022 Term Loan and certain Nigerian letters of credit) are denominated in U.S. dollars, with an aggregate principal amount outstanding of approximately $2,618 million as of December 31, 2023. Certain other components of our capital expenditures may also be linked to foreign currency-based pricing elements. Diesel, which is one of our most significant expenses, may be considered as linked to U.S. dollars given the international pricing of oil, and can be paid for in U.S. dollars when purchased offshore or in local currency when purchased locally. See “— Any increase in operating expenses, particularly increased costs for diesel or an inability to pass through or mitigate against increased diesel costs, could erode our operating margins and could have a material adverse effect on our business, prospects, financial condition and/or results of operations.” Should the relevant local currencies depreciate against the U.S.
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dollar, the cost of buying diesel in the relevant local currency may increase, but the impact on our results is less notable when translated back into U.S. dollars at a higher foreign exchange rate. There may, however, be instances where our suppliers face foreign exchange pressure in the importation of certain materials, or as a result of the exchange rate at which they are able to source (or which applies to items for which charges are based on) foreign currency and import certain materials. This could in turn result in pressure from our suppliers to increase amounts payable by us.
We hold U.S. dollar cash balances in some of our jurisdictions of operation and/or convert local currencies to the relevant foreign currencies for payment obligations. We are also party to certain instruments and/or facilities (such as letters of credit) from time to time, where there may be requirements to hold or deposit foreign-currency linked amounts (including local currency equivalents) to back-up debt or other obligations (including, but not limited to, as collateral). Accordingly, we are subject to fluctuations in the rates of currency exchange between the local currencies and the relevant foreign currency, as well as availability to source the relevant foreign currency in the jurisdictions in which we operate, and such fluctuations and/or availability could have a material adverse effect on our business, prospects, financial condition and/or results of operations. We may also be required to post additional foreign-currency linked amounts as collateral or otherwise to reflect such fluctuations. There may also be limited availability of U.S. dollars in the market at the time when we convert the relevant local currency to U.S. dollars, in which case we may need to convert the relevant local currency into U.S. dollars at a less favorable currency exchange rate. See also “Risks Relating to the Markets in which We Operate — Shortage of U.S. dollar, euro or other hard currency liquidity in the markets in which we operate could have a material adverse effect on our ability to service our foreign currency liabilities.”
In addition, our major customers may also face foreign exchange risks where their revenue is denominated in local currency, but their costs, including the fees they pay to us, are denominated in, or linked to, a foreign currency such as the U.S. dollar. When the local currency depreciates against the relevant foreign currency (such as the significant depreciations of the Naira against the U.S. dollar in 2016 (when the Naira depreciated from approximately ₦196.5 to $1.00 as of January 1, 2016 to ₦304.5 to $1.00 as of December 31, 2016), in 2023 (when the Naira depreciated from approximately ₦461.5 to $1.00 as of January 1, 2023 to ₦911.7 to $1.00 as of December 31, 2023), and again in January 2024, with the Naira having depreciated to ₦1,400.0 to $1.00 as of February 1, 2024)), it may impact the ability of our customers to make payments to us on a timely basis or at all, and our customers may either raise prices for their customers or cut back on capital and operational expenditures, both of which could reduce future demand for our services, or result in requests to renegotiate contract terms with us prior to the relevant MLA end date.
Fluctuations in exchange rates, including volatility related to events affecting the global economy or to geopolitical events or conflicts, depreciation of local currencies and/or a lack of sufficient availability of hard/international currencies, as required, could have a material adverse effect on our business, prospects, financial condition and/or results of operations. See “— Financial authorities in the markets in which we operate may intervene in the currency markets by drawing on external reserves, and their currencies are subject to volatility” and “— The existence of multiple foreign exchange markets with different exchange rates may impact the rate at which our operating subsidiaries’ financial results are translated into U.S. dollars for group reporting purposes, which may impact our financial condition and/or results of operations.”
The existence of multiple foreign exchange markets with different exchange rates may impact the rate used in our customer contracts and the rate at which our operating subsidiaries’ financial results are translated into U.S. dollars for group reporting purposes, which may impact our financial condition and/or results of operations.
As described below under “— Risks Relating to the Markets in which We Operate — Financial authorities in the markets in which we operate may intervene in the currency markets by drawing on external reserves, and their currencies are subject to volatility,” central banking authorities in the countries in which we operate may intervene in the currency markets or adopt policies that may impact the applicable exchange rates and/or amounts of foreign currency that may be obtained. In markets where there are multiple exchange rates available and/or referenced by the applicable banking authorities, there may be differences among the exchange rates companies use pursuant to accounting standards, contracted rates, rates quoted for other foreign exchange transactions, and ‘official’ central bank rates. If such differences exist, we may encounter issues relating to the interpretation or enforcement of our contracts with our customers. We may also be required to change the exchange rate applied to the translation of the local currency books of our operating subsidiaries to U.S. dollars for our consolidated group reporting purposes.
This has been particularly relevant to our operations in Nigeria in the past, where a significant portion of our operations are based. Following the significant depreciation of the Naira against the U.S. dollar in 2016, as described in “Risks Relating to Our Business — We and our customers face foreign exchange risks, which may be material,” in a continuing effort to improve U.S. dollar liquidity in Nigeria and to assist investors and exporters in accommodating foreign exchange transactions, the CBN introduced a new foreign exchange window for investors and exporters in April 2017 (the I&E window (now referred to as NAFEM), from which the NAFEX rate is also derived).
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This resulted in a situation where there were differing exchange rates in the market and we were required to regularly monitor and evaluate which exchange rate was most appropriate to apply in the translation of the Naira books of our Nigerian operations to U.S. dollars for our consolidated group reporting purposes.
Until the CBN ceased publishing the CBN official rate in May 2021, there existed a divergence between the two rates, with the CBN official rate (against the U.S. dollar) usually being lower than the NAFEX rate. Although the CBN ultimately implemented steps to unify the Nigerian foreign exchange market in June 2023, by replacing the old regime of multiple exchange rate segments into a single NAFEM window within which foreign exchange transactions would be determined by market forces, it is possible that in the future, official exchange rates in Nigeria or our other markets of operation may diverge again from prevailing market exchange rates due to future government interventions. We currently use the USD/NGN rate published by Bloomberg, which is approximately aligned to the NAFEM window rate, for reporting purposes.
The determination of the most appropriate rate to use at the relevant time we produce financial information will depend on a number of factors, including, but not limited to, availability and liquidity in the market generally. The foreign exchange rate that we determine to be the most appropriate for the translation of our results for group reporting purposes may, therefore, differ from the conversion rates contained within our contracts. For example, in Nigeria, following the Naira depreciation in 2016 and the existence of multiple rates in the market, we began to translate the results of our subsidiaries in Nigeria into our presentation currency, U.S. dollars, at rates more reflective of the NAFEX. Prior to the agreements that we subsequently reached with our Key Customers in Nigeria to update the reference exchange rate in our contracts to the prevailing market rate available on Bloomberg, because the NAFEX rate used for accounting purposes had historically been higher than the CBN official rate used in our contracts, notwithstanding any underlying performance, our financial results for the relevant periods would have shown a related decline in performance in case of devaluation of the NAFEX where the CBN official rate remained at the same level. While our contracts with certain of our Key Customers in Nigeria were amended to resolve that anomaly, and notwithstanding the action taken by the CBN in June 2023 to unify the Nigerian foreign exchange market, there can be no assurance that such a divergence between the applicable market rate or translation rate for our financial results, and the exchange rate reflected in our contracts with customers, will not occur again in Nigeria, or that the prevailing market rate on Bloomberg will not diverge from other exchange rates in the market (including NAFEM), or that a similar situation would not occur in other countries in which we operate, any of which could, in turn, have a material adverse effect on our business, prospects, financial condition and/or results of operations, notwithstanding any underlying performance.
In addition, other measures taken by the relevant central banks or similar, including the manner in which various exchange rates are published, may further impact the rates available in the market, and we may need to consider such measures for the purposes of our accounts.
Potential investors should, therefore, bear this in mind when considering an investment in our ordinary shares, and the potential impact on the future trading and/or market price of our ordinary shares based on a decline in reported financial and/or operational performance based on such factors.
We may not successfully execute our business strategy and operating plans or manage our growth, all of which depend on various factors, many of which are outside our control.
The existing and future execution of our strategic and operating plans will, to some extent, be dependent on external factors that we cannot control, such as changes in the tower infrastructure industry or the wider communications industry, particularly in the various jurisdictions in which we operate and may seek to operate in the future, changes in budgets of or demand from our current or potential customers for tower and other communications infrastructure services, international legislative and regulatory changes, changes in regional security or the economy of the countries in which we operate, changes in fiscal and monetary policies, the availability of additional tower and other communications infrastructure portfolios for acquisition and restrictions or other limitations relating to foreign direct investment or foreign ownership in particular markets (including, among other things, events such as inflation, geopolitical instability, health pandemics or epidemics, or events with a wide-ranging regional or global impact, accelerating the implementation of any such measures or giving rise to such factors). For example, high tariffs charged to users in the countries in which we operate compared to certain other countries in which we do not operate, may impede or slow the growth of the communications industries in the countries in which we operate and, in turn, our business.
We may be unable to implement our strategy relating to the construction of New Sites and deployment of other communications infrastructure. See “— Our ability to construct New Sites or to deploy other communications infrastructure depends on a number of factors, many of which are outside of our control.”
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Our ability to increase the number of Colocations and Lease Amendments on each Tower that we own across our portfolio is a key factor contributing to our growth and a key part of our strategy in the markets in which we operate. If we are unable to increase the number of Colocations and Lease Amendments on our Towers, either due to a lack of available space or from reduced customer demand, if we are unable to accurately assess and invoice customer equipment on our sites, or if we are unable to implement or achieve our other strategic plans or targets and key performance indicators, we may not achieve the revenue, margins or earnings that we need to grow or to offset the impact of any adverse economic conditions that may develop in the future.
Our ability to increase the usage of our infrastructure by our customers may depend on the performance of these customers and their success in acquiring and retaining end users for the purposes of their services. A decline in the number of end users for our customers, or lower than expected growth in end users for our customers, could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
In addition, our strategic and operational plans need to be continually reassessed to meet the challenges and needs of our businesses in order for us to remain competitive. For instance, we expect to adopt a more balanced approach to revenue growth and cash generation to counterbalance the recent macroeconomic headwinds across the world, particularly in Nigeria given the significant recent depreciations of the Naira in June 2023 and January 2024. As part of our heightened focus on cash generation, we may pursue operational efficiencies through productivity enhancements, cost and capital expenditure reductions, and a review of our portfolio of markets and assets. Notwithstanding these expectations, we may deploy strategic plans that ultimately do not achieve our initial expectations, particularly as they relate to entering new markets or exiting certain markets, acquiring or disposing of assets or deploying growth capital. Incorrect initial assumptions or the failure to implement and execute our strategic and operating plans in a cost-effective and timely manner, or at all, realize the cost savings or other benefits or improvements associated with such plans, or have financial resources to fund the costs associated with such plans or to incur costs in excess of anticipated amounts, or sufficiently assess and reassess the plans (including, in each case, as a result of challenges that may be posed or arise as a result of operating companies in which we may not have a majority of the economic or share ownership, whether in terms of operational or further commensurate funding challenges or otherwise), could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Further, successful execution of our business plan will require effective management of growth, which may include acquisitions or dispositions. The management team, operational systems and internal controls currently in place or to be implemented may not be adequate for such growth or other strategy, and the steps taken to hire personnel and to improve such systems and controls may not be sufficient. If we are unable to grow as anticipated, manage our growth effectively or successfully integrate any acquisitions (including their information technology or finance systems into our control environment), it could have a material adverse effect on our business, prospects, financial condition and/or results of operations. See Item 4.B. “Business Overview — Our Strategy” for further information on our key strategies.
Moreover, investors and other stakeholders, including regulators, are or may become increasingly focused on our sustainability or environmental, social and governance initiatives, including our plans to reduce diesel consumption. There can be no assurance we will be able to execute such strategies or deliver on projections or targets. For more information, see “— Increased attention to, and evolving expectations for, sustainability and environmental, social, and governance (“ESG”) initiatives could increase our costs, harm our reputation, or otherwise adversely impact our business.”
We rely on third-party contractors for various services and any disruption in or non-performance of those services would hinder our ability to effectively deploy or maintain our infrastructure.
We engage third-party contractors to provide various services in connection with the site acquisition, construction, supply of equipment and spare parts, access management, security and preventative and corrective maintenance of tower sites, as well as power management, including the supply of diesel to certain of our sites, sometimes with a small number of contractors in the relevant jurisdiction. For example, we have outsourced power management, refurbishment, operations and maintenance and security functions for certain of our sites in Nigeria to certain key suppliers and may continue to do so in other markets (including any new markets which we may enter). Their power management functions include the supply of diesel to and deployment of alternative power technologies, such as hybrid and solar power technologies, on certain sites, to help reduce diesel consumption to a contracted volume. Across our 11 markets, as of December 31, 2023, we outsourced certain operations and maintenance activities at 80% of our Towers. We also engage third-party contractors and suppliers with respect to other systems we use to operate our business, including but not limited to information technology systems and services.
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We are exposed to the risk that the services rendered by our third-party contractors will not always be available, satisfactory or match our and/or our customers’ targeted quality levels, as well as the risk that they may otherwise be unable to perform their obligations to some extent or at all, including as a result of labor disputes, insolvency, operational, access or transport restrictions or other limitations related to global or regional health events or outbreaks (such as COVID-19), geopolitical events (such as those related to political instability, conflicts or wars), or other events resulting in the imposition of economic or trade sanctions, export controls or similar restrictions. As a result, we may experience interruptions in our ability to provide services, our customers may be unsatisfied with our services, and we may be required to pay certain financial penalties under our contracts, or our customers may terminate their contracts in the event of a material breach, any of which could have a material adverse effect on our reputation and brand, as well as our business, prospects, financial condition and/or results of operations.
Additionally, over the past few years the U.S. government has imposed economic and trade sanctions and export control restrictions on a number of entities in China, including certain China-based technology companies (such as Huawei Technologies Co., Ltd., or Huawei, and certain of its affiliates), with whom we conduct business. It is possible that, in the future, there may be additional regulatory challenges or enhanced trade-related restrictions targeting Huawei or other China-based technology companies. Such potential restrictions or sanctions, as well as any associated inquiries or investigations or any other government actions, may be difficult or costly to comply with and may, among other things, delay or impede the development of the technology, products and solutions of China-based third-party contractors and/or suppliers with whom we are currently engaged or may become engaged with and hinder the stability of the supply chains of such contractors and suppliers, any of which may have a material adverse effect on our business, financial condition and/or results of operations.
In addition, if third-party contractors do not meet execution targets for both financial and operational performance, including not meeting our standards of service or complying with health, safety, employment or other laws and regulations, or are unable to perform to some extent or at all, we may have to step in and complete the process. If we are required to undertake this work ourselves, it could require extensive time and attention from our management and lead to increased future operating costs while the work is carried out, which in turn could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We rely on third-party suppliers for the supply of diesel, materials, equipment and other goods, and any disruption in the provision of those goods would hinder our ability to effectively deploy or maintain our infrastructure.
We rely on third parties for supply of various materials, equipment and other goods or items to support our operations, including the supply of diesel, which is critical, as many of the markets in which we currently or may, in future, operate (including, in particular, those in Africa) have limited or unreliable power grid connectivity (including due to the impact of seasonal extreme weather conditions), thereby resulting in a heavy reliance on alternatives such as diesel-powered generators. Given the importance of diesel for our operations, we may purchase diesel in large quantities which is then stored at our facilities. This supply could be disrupted by events that are beyond our control, including, for example, outbreaks or events with a wide-ranging regional or global impact (including health pandemics or epidemics), or geopolitical events such as those related to political instability, conflicts or wars. While we aim to purchase diesel from reputable third parties that can provide a consistent supply of diesel of appropriate quality, we also cannot control the ultimate source of the diesel provided by such suppliers or any alteration in the quality of the product at the point of receipt (such as adulteration or theft of products during the delivery period). While we maintain planning, monitoring and logistics systems including bulk storage facilities aimed at providing a consistent supply of diesel to sites, scarcity of diesel, lack of available trucks, labor disputes, blockades, protests by third parties, queues and other issues at fuel depots and security concerns at certain sites, and fire, among other things, including the impact of climate change or related initiatives, have in the past and may in the future, cause this supply to be disrupted. Disruption in the supply of diesel or diesel quality not meeting our requirements would impede our ability to continue to power our sites and adversely affect power uptimes. Widespread or long-term disruption in the supply of diesel may result in us being unable to meet the service level agreement targets under our MLAs, and in some cases we would be required to shoulder resultant financial penalties, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We also rely on third-party suppliers for many of the other materials, equipment and goods necessary to operate our business, including batteries, solar panels, and fiber optic cable. The failure of suppliers to supply equipment in a timely manner or on commercially reasonable terms could delay our plans to expand our business and otherwise increase our costs. Our orders with certain of our suppliers may represent a very small portion of their total orders. As a result, they may not give priority to our business, leading to potential delays in or cancellation of our orders. If any single-source supplier were to fail to supply our needs on a timely basis or cease providing us with equipment, we would be required to locate and contract with substitute suppliers. We may have difficulty identifying a substitute supplier in a timely manner and/or on commercially reasonable terms. If this were to occur, our business and operations could be harmed.
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In addition, adverse economic conditions and trade policy considerations, such as supply chain disruptions and labor shortages and persistent inflation, have impacted, and may continue to adversely impact our suppliers’ ability to provide us with materials and equipment, which may negatively impact our business. These economic conditions make it more difficult for us to accurately forecast and plan our future business activities.
Additionally, there are increasing regulations and expectations in various jurisdictions that companies monitor the environmental and social performance of their suppliers, including compliance with a variety of labor practices and the provenance of certain materials, as well as consider a wider range of potential environmental and social matters. Compliance can be costly and may require us to establish or augment programs to diligence or monitor our suppliers, or, in certain cases, to design supply chains to avoid certain regions altogether. Failure to comply with such regulations can result in fines, reputational damage, or otherwise adversely impact our business.
Our Contracted Revenue is based on certain estimates and assumptions and actual results may differ materially from such estimated operating results.
Our Contracted Revenue disclosed in this Annual Report represents our estimate of the lease fees to be received from existing Tenants of Key Customers for the remainder of each Tenant’s current contractual site lease term, lease fees to be received from the existing Lease Amendments of Key Customers for the remainder of each Lease Amendment’s current contractual term and lease fees to be received from Key Customers where we provide access to fiber access to an OLT for the remainder of the relevant contractual term, as of December 31, 2023. Our Contracted Revenue is based on certain estimates and assumptions, such as constant foreign exchange rates, no escalation of lease fees despite contractual provisions in our MLAs in that regard, no new tenants or new Lease Amendments added, no amendments to our existing MLA terms and no Churn. Unanticipated events may occur that could adversely affect the actual results achieved by us during the periods to which these estimates relate, causing some or all of the actual results to deviate from our estimates and assumptions, which in turn could have a material adverse effect on our business, financial condition and/or results of operation.
Any increase in operating expenses or costs, particularly increased costs for diesel or ground lease costs, or an inability to pass through or mitigate against such costs, could erode our operating margins and could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Our primary operating expenses include diesel fuel, site maintenance and security, salaries of engineers and security personnel, fees for licenses and permits and insurance. In addition, we incur ground lease costs and the continued development, expansion and maintenance of our tower site and other communications infrastructure requires ongoing capital expenditure. There is no assurance that our operating expenses, including those noted above, will not increase in the future or that we will be able to successfully pass any such increases in operating expenses to our customers. For example, we require a substantial amount of diesel to power our tower site operations. For the year ended December 31, 2023, the cost of power generation, which includes diesel, haulage and minimal electricity, accounted for 33.5% of our cost of sales, as compared to 36.2% of our cost of sales for the year ended December 31, 2022.
Diesel prices have fluctuated significantly over time, often in parallel to changes in oil prices, and may fluctuate in the future as a result of many factors, including but not limited to the impact of events with a wide-ranging regional or global impact (including health pandemics or epidemics), geopolitical conflicts and wars (including their consequences, for example on trade routes or supply chains), and any related economic sanctions, foreign exchange effects and/or climate change or related initiatives, and we are only able to pass through a component of the fuel costs at our sites to our customers under the terms of certain of our contracts. We therefore remain exposed to diesel price volatility, which may result in substantial increases in our operating costs and reduced profits if prices rise significantly. Further, our attempts to reduce power costs through the deployment of DC generators, hybrid battery and solar technologies, while presently successful, may not be successful in the future.
On May 31, 2023, the Nigeria Federal Inland Revenue Service issued a letter to diesel suppliers in Nigeria, informing them that they would be required to pay a Value Added Tax (VAT) of 7.5% on imported diesel at the point of entry into the country. However, on October 1, 2023, the Federal Government of Nigeria suspended VAT on imported diesel for a period of six months effective from October 1, 2023 through to March 31, 2024. Our business could be directly impacted from the reinstatement of VAT as we might be unable to pass the cost through to our customers.
Our ground lease costs are for a fixed duration, typically a 10-to-15-year term, paid for either on a monthly or quarterly basis or in advance for a multi-year portion of the overall term of the lease. Approximately 18% of our ground leases are due for renewal within the next 24 months. The renewal of a large proportion of our tower portfolio ground leases within a particular year may require a significant upfront rent payment made upon such renewal, which in turn could increase our cash outflows for that particular year.
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Any increases in operating expenses or lease costs referred to above would reduce our operating margins and may have a material adverse effect on our business, prospects, financial condition and/or results of operations.
If we are unable to renew and/or extend our ground leases, or protect our rights to access and operate our Towers or other communications infrastructure assets, it could have a material adverse effect on our business and operating results.
Our site portfolio consists primarily of ground-based towers constructed on land that is leased under long-term ground lease agreements. As of December 31, 2023, approximately 89% of the sites in our portfolio were operated under ground leases on land that we do not own. For sites on leased land, approximately 40% of the ground leases have an expiration date before the end of 2028 and, as of December 31, 2023, the average remaining life of our ground leases was 8.7 years.
For various reasons, landowners or lessors may not want to renew their ground leases, may seek substantially increased rents, or they may lose their rights to the land (including, for example, if such land is subject to concession agreements) or transfer their land interests to third parties, which could affect our ability to renew ground leases on commercially viable terms or at all. In addition, we may not have the required available capital to extend these ground leases at the end of the applicable period. In the event that we cannot extend these ground leases, we will be required to dismantle and/or relocate these Towers and may lose the cash flows derived from such Towers, which may have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Real property interests relating to Towers consist primarily of leasehold interests, which in some cases relate to sites for which special access arrangements may be required, such as Towers located on or near airports, government facilities or rooftops. For various reasons, we may not always have the ability to access, analyze and verify all information regarding titles and other issues prior to entering into a ground lease, or we may be unable to contractually agree to amendments in relation to sensitive site access issues, all of which could affect the rights to access and operate the site. From time to time, we may also experience disputes with lessors regarding the terms of ground leases, which could affect our ability to access and operate a tower site. The termination of a ground lease may interfere with our ability to operate and generate revenue from the Tower. If this were to happen at a material number of sites, it would have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Our ability to access and operate our Towers or other communications infrastructure may also rely on right of use or other similar agreements with third parties. In the event that we cannot renew or continue to exercise our rights under these agreements, we will be required to dismantle and/or relocate these Towers or other communications infrastructure assets, and may lose the cash flows derived from such assets, which may have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We may experience the loss of tenancies and/or customers, and are exposed to the loss of revenue from the failure or acquisition of any customer or customer consolidation.
If we were to experience a loss of tenancies when services provided by us are terminated, a Tenant does not renew its contract or we have ceased recognizing revenue for a customer on a site in any particular period, we would face what is known as Churn. For example, Tenants may determine that demand has changed in a particular area and they no longer need tower infrastructure at certain sites. A Tenant may Churn if the relevant MLA or SLA is not renewed at the end of its term, the customer ceases operations or switches to a competing tower company. For example, in September 2023, MTN Nigeria issued a statement that it has selected ATC Nigeria Wireless Infrastructure Solutions Limited to provide services to approximately 2,500 sites that are currently owned and managed by IHS Nigeria pursuant to lease agreements that are due to expire in 2024 and 2025.
Similarly, certain customers may be acquired, experience financial difficulties or cease operations as a result of technological changes or other factors, including the impact of events with a wide-ranging regional or global impact (including health pandemics or epidemics) and resulting effects, which could result in renewal on less favorable terms, cancellation or non-renewal of our tenancy agreements. We experienced Churn of 1,334 and 603 Tenants for the years ended December 31, 2023 and 2022, respectively. Other than a customer Churning at the end of its term, limited termination clauses may apply pursuant to the relevant MLA. Certain of our customer agreements also contain a contractual right to Churn a limited number of sites each year without penalty, and customers with no such right could use their negotiating power in the future to request the ability to Churn certain tenancies. If customers terminate or fail to renew customer lease agreements with us (either on commercially acceptable terms, or at all), are acquired or, become insolvent, or otherwise become unable to pay lease fees, the loss of such customers could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
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Also, as is customary in tower infrastructure acquisitions, purchase agreements sometimes allow the purchaser of a site, such as us, to unwind sites when legal title has not been transferred by a date falling a number of months after completion of the acquisition, or the long-stop date, unless extended by the mutual consent of the parties. In the event that such unwinding takes place, which is typically at the option of the purchaser, the seller would reimburse the purchaser for the price paid for the sites that are subject to unwinding and the seller, such as the relevant MNO, would stop paying the lease fee for those sites. Failure to transfer the legal title of acquired sites, including in respect of prior acquisitions where the long-stop date has been extended, or future acquisitions, could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Further, consolidation among or with our customers could result in a reduction in their or the market demand for base transmission sites and/or Colocation, as certain base transmission sites may become redundant or additional tower spaces could be acquired through consolidation, and our customers may therefore choose not to renew their contracts and lease agreements, and we may also not be able to pursue our strategies to obtain or engage with new customers, or we may face reduced or less than anticipated demand from new or existing customers, in any particular market. Such consolidation may also result in a reduction in our customers’ (or potential new customers’) future capital expenditures, including as a result of their expansion plans being similar or if their requirements for additional sites decreases on a consolidated basis. We believe consolidation may occur in certain of our markets in order to achieve both the scale and economic models necessary for long-term growth. Customer or industry consolidation may also result in increased customer concentration. See “— A significant portion of our revenue is derived from a small number of MNOs. Non-performance under or termination, non-renewal or material modification of customer lease agreements with these customers could have a material adverse effect on our business, prospects, financial condition and/or results of operations.” Our contracts and lease agreements may be unable to protect us adequately from a reduction in tenancies due to consolidations and we may be unable to renew contracts or lease agreements on favorable terms, or at all. If a significant number of contract or lease terminations occur due to industry consolidation, our revenue and cash flow could be adversely affected, which in turn could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
A slowdown in the growth of, or reduction in demand for, wireless communications services could adversely affect the demand for tower space and could have a material adverse effect on our financial condition and/or results of operations.
Demand for tower space is dependent principally on demand from wireless communications carriers, which, in turn, is dependent on subscriber demand for wireless services. Most types of wireless services currently require ground-based network facilities, including communications sites for transmission and reception. The extent to which wireless communications carriers lease such communications sites depends on a number of factors beyond our control, including the level of demand for such wireless services, the availability of spectrum frequencies, the financial condition and access to capital of such carriers, changes in telecommunications regulations and general economic conditions, as well as factors such as geography and population density. In addition, if our customers or potential customers do not have sufficient funds from operations or are unable to raise adequate capital to fund their business plans or face other financial issues, they may reduce their capital spending, which could adversely affect demand for space on our towers, which in turn could have a material adverse effect on our business, prospects, financial condition and/or results of operations. These customers could also be forced to reduce their operating expenses, including the amount they spend to lease space on our towers or other communications infrastructure, despite their contractual obligation to pay us, which in turn could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
In addition, tower sharing must continue to be seen by wireless telecommunications providers as a cost-effective way to satisfy their passive infrastructure needs. Any slowdown in the growth of, or reduction in demand for, wireless telecommunications services, or any failure of tower sharing to continue to develop as a way to meet the requirements of wireless telecommunications providers in the countries in which we operate, may adversely affect the demand for tower sites and could have a material adverse effect on our business, prospects, financial condition and/or results of operations, as well as our cash flows. For example, certain of our customers in various countries in which we operate have, in recent years, formed their own independent companies for the sole purpose of providing tower sharing and have subsequently directed much of their new business to these companies.
Further, there can be no assurances that 3G, 4G, 5G, advanced wireless services in any other spectrum bands or other new wireless technologies will be deployed or adopted as rapidly as estimated or that these new technologies will be implemented in the manner anticipated or at all. Additionally, the demand by consumers and the adoption rate of consumers for these new technologies once deployed may be lower or slower than anticipated, particularly in emerging and less developed markets such as those in which we operate or may operate in the future.
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We may also need to adapt our business model to new technologies such as 5G and the resulting change to products and services we offer, as well as to changing customer or local or regulatory requirements, such as increasing construction of New Sites and infrastructure expansion in remote or rural areas, which may be less commercially viable or more technologically or operationally challenging for us (including potentially as a result of needing to contemplate elements of active communications equipment or revenue share models within our business or operating model). These factors could adversely affect our growth rate since growth opportunities and demand for our tower space as a result of such new technologies may not be realized at the times or to the extent anticipated, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
New technologies designed to enhance the efficiency of wireless networks and potential active sharing of the wireless spectrum could reduce the need for tower-based wireless services and could make our tower infrastructure business less desirable to or necessary for Tenants and result in decreasing revenue.
The development and implementation of new technologies designed to enhance the efficiency of wireless networks or the implementation by MNOs of potential active sharing technologies could reduce the use of and need for tower-based wireless services transmission and reception and could decrease demand for tower-based antenna space and ancillary services we provide. For example, new technologies that may promote network sharing, joint development, or resale agreements by our wireless service provider customers, such as signal combining technologies or network functions virtualization, may reduce the need for our wireless infrastructure, or may result in the decommissioning of equipment on certain sites because portions of the customers’ networks may become redundant. In addition, other technologies and architectures, such as WiFi, DAS, femtocells, other small cells, or satellite (such as low earth orbiting satellite systems capable of providing internet coverage, including the service recently commenced by Starlink in some of our African markets; more recently, MTN Group announced partnering with satellite providers as a complement to their terrestrial network in order to increase network coverage in rural areas) and mesh transmission systems may, in the future, serve as substitutes for, or alternatives to, the traditional macro site communications architecture that is the basis of substantially all of our site leasing business. Additional examples of such new technologies might include spectrally efficient technologies which could potentially relieve some network capacity problems, or complementary voice over internet protocol access technologies that could be used to offload a portion of subscriber traffic away from the traditional tower-based networks, which would reduce the need for telecommunications operators to add more tower-based antenna equipment at certain tower sites. MNOs in European markets and Latin America have implemented active sharing technologies in which MNOs share the wireless spectrum and, therefore, need fewer of their own antennas and less tower space for such equipment. For example, in October 2023, Colombia’s business regulator authorized Tigo and Movistar to share their network infrastructure and radio spectrum. Moreover, the emergence of alternative technologies could reduce the need for tower-based wireless services transmission and reception. For example, the growth in delivery of wireless communication, radio and video services by direct broadcast satellites could materially and adversely affect demand for our antenna space, or certain alternative technologies could cause radio interference with older generation tower-based wireless services transmission and reception. As a result, the development and implementation of alternative technologies to any significant degree could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Increased competition in the tower infrastructure industry could have a material and adverse effect on our business.
Although we are a leading independent provider of telecommunications tower infrastructure in most of our markets, competition in the tower infrastructure industry exists and customers have alternatives for leasing tower space, including:
| ● | telecommunications operators which own and lease their own tower portfolios; |
| ● | in certain circumstances, owners of alternative site structures such as building rooftops, outdoor and indoor DAS networks, billboards and electric transmission towers; and |
| ● | other independent tower companies operating in the market, such as American Tower Corporation, or ATC, SBA Communications Corporation, or SBA, or other tower companies that may enter the market. |
We believe that competition in the tower infrastructure industry in emerging and less developed markets (including markets such as Africa, the Middle East and Latin America) is based on, among other things, power management expertise, tower location, relationships with telecommunications operators, tower quality and height, pricing or other more favorable or suitable contractual terms, and ability to offer additional services to tenants and operational performance, as well as the size of a company’s site portfolio and its ability to access efficient capital.
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We believe we are the market leader in Africa by tower count as of December 31, 2023, with 30,451 towers. ATC is our primary competitor in Africa among independent tower companies, including in Nigeria and South Africa, and Helios Towers Plc and SBA are other notable competitors in Africa. In Brazil, the competitive landscape is wider as of December 31, 2023, with ATC, SBA and Highline owning more towers than we do as of December 31, 2023, and numerous smaller tower companies of similar size to or smaller than our business. The Brazilian and South African competitive landscape presents opportunities for consolidation. We also compete to a lesser extent with telecommunications operators who have retained their own towers and continue to manage them and make them available for Colocation or who have formed their own independent companies for the sole purpose of providing tower infrastructure sharing. In certain circumstances, we also compete with owners of alternative site structures such as building rooftops, outdoor and indoor DAS networks, billboards and electric transmission towers. In addition, there may be increased competition in the future from other independent tower companies operating in, or that may enter, our markets.
Competitive pressures could increase and could have a material adverse effect on lease rates paid by our customers, which could result in existing customers not renewing their leases, renegotiating for more favorable contractual terms, switching infrastructure providers or new customers leasing towers from our competitors rather than from us. In addition, we may not be able to renew existing customer leases or enter into new customer leases, either on commercially acceptable terms or at all, which could have a material adverse effect on our results of operations and growth rate. Increasing competition could also make the acquisition of attractive tower portfolios or other tower companies more costly, or limit acquisition opportunities altogether, particularly in cases where our competitors have a lower cost of capital. Any of the foregoing factors could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We face a number of risks related to our strategic transactions.
A key element of our growth strategy has been to increase our tower portfolio through acquisitions, and we expect to continue to make acquisitions in the future, including in new geographic markets and/or adjacent communications infrastructure verticals. In 2020, we completed the acquisition of towers in Kuwait, Brazil, Peru and Colombia. In 2021 we completed the acquisition of towers in Brazil and Colombia, acquired TIM Brasil’s secondary fiber network infrastructure and signed the Egypt Transaction. In 2022 we completed the acquisition of towers in South Africa and Brazil. There can be no assurance that we will be able to identify suitable acquisition candidates in the future or acquire them on acceptable terms, including due to increased competition for attractive acquisition opportunities in the relevant markets, or that any particular acquisition or investment will perform as anticipated in our investment appraisals or related targets. Additionally, we rely on our due diligence of the acquired assets or business and the representations and financial records of the sellers and other third parties to establish the anticipated revenue and expenses and whether the acquired assets or business will meet our internal guidelines for current and future potential returns. Given the nature of the individual assets which are numerous and geographically diverse, it can be difficult to conduct effective physical diligence on these, which is typically conducted by way of a sample audit. In addition, we may not always have the ability to analyze and verify all information regarding title, access and other issues regarding the land underlying acquired towers. The condition of the assets can also deteriorate significantly during the period prior to closing (and after physical site audits) because sellers may reduce operating and capital expenditure on such towers.
Moreover, we may incur significant costs during the evaluation and consideration of new investment opportunities or the pursuit of such acquisitions, which are often conducted through competitive auction processes. Tower portfolio or other asset acquisitions typically take a considerable period of time to sign and close and usually close in stages, but can involve up-front investments that cannot be recovered regardless of whether the transaction is successfully completed. Tower portfolio or other asset acquisitions are subject to certain customary conditions and closing these transactions will generally depend on whether certain conditions precedent and/or conditions subsequent are satisfied, such as regulatory approvals. In the event that conditions are not satisfied or are not satisfied in a timely manner, we have been in the past and may in the future be unable to acquire certain tower portfolios or other assets, or closings (and therefore operations and revenue) may be delayed, while, in each case, incurring associated or continuing transaction costs. We may also at any time be participating in one or multiple sale or acquisition processes across various markets and continents (which may include processes in Africa, the Middle East, Latin America, Southeast Asia or other markets with different counterparties). Given the confidential nature of such processes the details of these would only be available once we have been selected as the preferred candidate and reached agreement on terms with the counterparty. We may also be unable to succeed in the processes (or any of them) in which we participate or reach an agreement on terms with the counterparty should we be selected as the preferred candidate. Given the often-varying transaction structures of these communications infrastructure sales or acquisitions, we often have little or no control on the timing of such processes.
We may be required to rely on the financial and operational representations, warranties and undertakings (including any indemnity) of sellers.
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If: (i) records with respect to the acquired assets are not complete or accurate, (ii) we do not have complete access to, or use of, the land underlying the acquired towers, (iii) we discover that the towers or other communications infrastructure have structural issues (such as overloading) (iv) the towers or other assets do not achieve the financial results anticipated, or (v) there are historic liabilities attaching to the acquired assets that we are unable to successfully recover under an indemnity, it could have a material adverse effect on our business, prospects, financial condition and/or results of operations. Furthermore, some sellers may or may not have the financial capacity to support a subsequent claim against them. While we acquire representation and warranty insurance in some of our transactions, such policies typically contain certain exclusions that would limit our ability to recover certain losses.
In addition, the process of integrating acquired assets or businesses into our operations has resulted in and may result in unforeseen operating difficulties and large expenditures and may absorb significant management attention that would otherwise be available for the ongoing development of our business. Even if we are successful in completing one or more acquisitions, the failure to adequately address the financial, operational or legal risks of these transactions could harm our business. We also may incur unexpected or contingent liabilities in connection with acquisitions. We may also be unable to retain or replace key personnel of an acquired business, or recruit key personnel in the case of acquired assets, which could reduce the value of the acquisition and prevent us from realizing our strategic goals. In certain instances, including pursuant to the TIM Fiber Acquisition and the MTN SA Acquisition, we may also rely on transition services arrangements with external parties to support the operation of acquired assets while they are fully integrated. These risks may be exacerbated in material acquisitions. Further, such material acquisitions may exacerbate the risks inherent with our growth strategy, such as (i) an adverse impact on our overall profitability if the acquired towers or business does not achieve the financial results estimated in our valuation models, (ii) unanticipated costs associated with the acquisitions that may impact our results of operations for a period, (iii) increased demands on our cash resources or increased debt on our balance sheet that may, among other things, impact our ability to explore other opportunities, (iv) undisclosed and assumed liabilities that we may be unable to recover, (v) increased vulnerability to general economic conditions, (vi) an adverse impact on our existing customer relationships, (vii) additional expenses and exposure to new regulatory, political and economic risks if such acquisitions were in new jurisdictions and (viii) diversion of managerial attention.
Furthermore, our international expansion initiatives are subject to additional risks such as complex laws, regulations and business practices that may require additional resources and personnel. There can be no assurance that we will be successful in integrating acquisitions or new businesses into our existing business or be able to fully recognize the anticipated benefits of towers or businesses that we acquire, and failure to do so could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
In addition, we may divest or reduce our investment in certain businesses from time to time. Such divestitures involve risks, such as difficulty separating portions from our other businesses, distracting employees, incurring potential loss of revenue, negatively impacting margins, and potentially disrupting customer relationships. We may also incur significant costs associated with exit or disposal activities, related impairment charges, or both, including if such divestiture is not adequately covered by insurance or other enforceable indemnity or similar agreement with a creditworthy counterparty. If we are unable to successfully manage any of the risks in relation to any future acquisition or divestitures, our business, financial condition and results of operations could be adversely impacted.
We may consider selling certain assets or businesses; however we may not be successful achieving a sale and if we do it may not be on terms similar or higher to the valuation in which we bought or constructed the assets or at levels investors would view as attractive.
As part of our ongoing business, we are constantly evaluating the markets in which we operate and the assets and businesses which we own, and whether they continue to fit within our overall strategic objectives. Some of the reasons for which assets and or businesses may no longer fit within our overall strategic objectives could be a recognition we will not achieve the intended scale in a market that we believe is needed; changes in macroeconomic, secular (including regulatory) or competitive conditions within the market they are located; a decision to reduce revenue or customer concentration within a region or market; or a perceived disconnect in the value being ascribed to our assets by the public markets or investors relative to what we believe their value is. Such sales could include an outright or partial sale of the assets or business. To the extent we elect to consider a sale, it is possible that we may ultimately not receive interest from willing buyers or there is a risk that such interest is at a price that is lower than the value which we believe they are worth, in either case resulting in us not being able to sell them. Even if we are successful in selling the assets or business, it may not be for the same value at which we previously bought the assets or the cost at which we constructed them, or the value at which they are being recognized in our financial statements. They may also not be at a value which our investors would view as attractive.
Moreover, similar to acquisitions, sale transactions are also usually subject to the satisfaction of certain conditions precedent or conditions subsequent, which may impact our ability to successfully complete any such sales or complete them in a timely manner.
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We also may be required to provide certain representations, warranties and undertakings (including indemnities) to buyers, which could lead to future liabilities and/or adjustments of the sale price, including as a result of the buyers enforcing such indemnities against us, or full or partial unwinding of any such transaction. Any of these could, in turn, have a material adverse effect on our business, prospects and/or results of operations.
Our ability to construct New Sites or to deploy other communications infrastructure depends on a number of factors, many of which are outside of our control.
Our ability to construct New Sites or to deploy other communications infrastructure in new or existing markets is affected by a number of factors beyond our control, including the availability of and access to suitable land that meets our requirements, including those of the initial customer, and the availability of construction equipment and skilled construction personnel. Delays brought on by a number of factors could also adversely affect our ability to deliver New Sites or to deploy other communications infrastructure in a timely and cost-effective manner, particularly in connection with timelines contractually agreed with customers. There can be no assurance that:
| ● | we will be able to enter into identified new markets in which we intend to deploy New Sites or other communications infrastructure; |
| ● | every individual New Site or other communications infrastructure asset will be commercially viable or meet our investment criteria; |
| ● | we will be able to overcome setbacks to new construction, including local opposition; |
| ● | we will be able to maintain relationships with the regulatory authorities and to obtain any required governmental approvals for new construction; |
| ● | the number of towers or other infrastructure planned for construction will be completed in accordance with the requirements of customers or the ability of our customers to obtain the requisite level of end users to support the level of capital expenditure spent to expand the network; |
| ● | there will be a significant need for the construction of new towers or other communications infrastructure; |
| ● | we will be able to agree to favorable revenue share models with our customers or other parties that make constructing new rural sites economical for all parties; |
| ● | we will be able to finance the capital expenditures associated with construction or deployment of New Sites or other communications infrastructure; |
| ● | we will be able to import the equipment necessary for the construction or deployment of New Sites or other communications infrastructure; |
| ● | we will be able to purchase and/or import components necessary for the construction or deployment of New Sites or other communications infrastructure, including steel and fiber, or purchase such components at expected prices or that such components will be delivered in a timely fashion; or |
| ● | we will be able to secure rights or access to the land necessary to execute customer orders for New Sites or other communications infrastructure. |
Although we are continuously examining the merits, risks and feasibility of and searching for strategic new site opportunities, such efforts may or may not result in profitable New Sites, including as a result of these uncertainties, which could, in turn, have a material adverse effect on our business, prospects, financial condition and/or results of operations. See “— We do not always operate with the required approvals and licenses for some of our sites, particularly where it is unclear whether a certain license or permit is required or where there is a significant lead time required for processing the application, and therefore may be subject to reprimands, warnings and fines for non-compliance with the relevant licensing and approval requirements” for more information.
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Increased attention to, and evolving expectations for, sustainability and environmental, social, and governance (“ESG”) initiatives and disclosures could increase our costs, harm our reputation, or otherwise adversely impact our business.
Companies across industries are facing increasing scrutiny from a variety of stakeholders related to their ESG and sustainability practices. Expectations regarding voluntary ESG initiatives and disclosures and consumer demand for alternative forms of energy may result in increased costs (including but not limited to increased costs related to compliance, stakeholder engagement, contracting and insurance), changes in demand for certain products, enhanced compliance or disclosure obligations, or other adverse impacts to our business, financial condition, or results of operations.
While we may at times engage in voluntary initiatives (such as voluntary disclosures, certifications, or target and goals, among others) or commitments, such as our Carbon Reduction Roadmap, to improve the ESG profile of our company and/or offerings or respond to stakeholder demand, such initiatives or achievement of such commitments may be costly and may not have the desired effect. Our estimates and projections regarding the implementation of such initiatives and goals, and the savings achieved from their implementation, are subject to various risks and uncertainties. For example, we may ultimately be unable to complete certain initiatives or targets, either on the timelines initially announced or at all, due to technological, cost, or other constraints, which may be within or outside of our control. Our ESG efforts may also include the adoption, or expansion, of certain ESG practices or policies, which may require us to expend additional resources to implement or to forego certain business opportunities to the extent others in our value chain do not meet pertinent requirements of such policies. By contrast, any failure, or perceived failure, to conform to such policies could have an adverse impact on our reputation and business activities. Moreover, actions or statements that we take are in many cases based on expectations, assumptions, or third-party information, which may require substantial discretion and forecasts about costs and future circumstances. While we currently believe such expectations, assumptions, and third-party information to be reasonable, other parties may not always agree with our methodologies and such methodological characteristics may subsequently be determined to be erroneous or not in keeping with best practice, including as such best practices continue to evolve. Even if this is not the case, our current efforts may subsequently be determined to be insufficient by various stakeholders, and we may be subject to various adverse consequences or investor or regulator engagement on our ESG initiatives and disclosures, including potential enforcement and litigation, even if such initiatives are currently voluntary. Our performance may be subject to greater scrutiny as a result of our announcement of any goals or policies and the publication of our performance against the same.
Moreover, despite the voluntary nature of such efforts, we may receive pressure from external sources, such as lenders, investors or other groups, to adopt more aggressive climate or other targets and goals, or other ESG-related initiatives; however, we may not agree that such initiatives will be appropriate for our business, and we may not be able to implement such initiatives because of potential costs or technical or operational obstacles. Certain market participants, including major institutional investors and capital providers, use third-party benchmarks and scores to assess companies’ ESG profiles in making investment or voting decisions. Unfavorable ESG ratings could lead to increased negative investor sentiment towards us, which could negatively impact our share price as well as our access to and cost of capital. To the extent ESG matters negatively impact our reputation, it may also impede our ability to compete as effectively to attract and retain employees, customers, or business partners, which may adversely impact our operations. In addition, we expect there will likely be increasing levels of regulation, disclosure-related, audit and otherwise, with respect to ESG matters. Various policymakers, including the European Union and the SEC, have adopted (or are considering adopting) requirements for disclosure of climate or other ESG-related information, which may require us to incur significant additional costs to comply, including the implementation of significant additional internal controls processes and procedures regarding matters that have not been subject to such controls in the past, and impose increased oversight obligations on our management and board of directors. Simultaneously, there are efforts by some stakeholders to reduce companies’ efforts on certain ESG-related matters. Both advocates and opponents to certain ESG matters are increasingly resorting to a range of activism forms, including media campaigns and litigation, to advance their perspectives. To the extent we are subject to such activism, it may require us to incur costs or otherwise adversely impact our business. This and other stakeholder expectations will likely lead to increased costs as well as scrutiny that could heighten all of the risks identified in this risk factor. Such ESG matters may also impact our suppliers and customers, which may compound or cause new impacts on our business, financial condition or results of operations, including risks which may not be known to us.
We rely on key management personnel and any inability to recruit, train, retain and motivate key employees could have a material adverse effect on our business.
We believe that the current management team contributes significant experience and expertise to the management and growth of the business. The continued success of the business and our ability to execute our business strategies in the future will depend in large part on the efforts of key personnel particularly Mr. Darwish, our Chairman and Group Chief Executive Officer, and our other senior officers, each of whose services are critical to the success of our business strategies. There is also a shortage of skilled personnel in the communications infrastructure industry in the markets in which we operate, which we believe is likely to continue.
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As a result, we may face increased competition for skilled employees in many job categories from tower companies, communications operators and new entrants into the communications infrastructure industry and this competition is expected to intensify. Although we believe our employee salary and benefit packages are generally competitive with those of our competitors, if our competitors are able to offer more generous salary and benefit packages in the future, we may face difficulties in retaining skilled employees. In addition, we have at times experienced a loss of personnel due to migration from the markets in which we operate. An inability to successfully integrate, recruit, train, retain and motivate key skilled employees could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We have incurred and may continue to incur losses.
We incurred losses of $1,988.2 million (including approximately $1,796.4 million of unrealized foreign exchange losses) and $469.0 million (including approximately $158.3 million of unrealized foreign exchange losses) for the years ended December 31, 2023 and 2022, respectively. Our losses were principally due to depreciation, and amortization and finance costs, which includes realized and unrealized losses from foreign exchange movements, in each respective year. As a result of our acquisitions and exposure to foreign exchange movements, we expect our depreciation, amortization and finance costs to continue to be significant and may increase as a result of the execution of our strategy or foreign exchange volatility. For example, in June 2023 the Naira experienced significant depreciation following steps taken by the CBN to unify the Nigerian foreign exchange market, by replacing the old regime of multiple exchange rate segments into a single NAFEM window to allow foreign exchange transactions to be determined by market forces. In January 2024, there was a further significant devaluation of the Naira to ₦1,455.6 to $1.00 as of January 31, 2024. If we incur losses in the future, it could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We do not always operate with the required approvals and licenses for some of our sites, particularly where assets are acquired from third parties or where it is unclear whether a certain license or permit is required or where there is a significant lead time required for processing the application, and therefore may be subject to reprimands, warnings and fines for non-compliance with the relevant licensing and approval requirements.
Although we generally seek and obtain the requisite federal, national, state and/or local approvals prior to the commencement of tower construction, it is often unclear whether certain, particularly local, permits are required and, in some circumstances, local authorities have imposed permit requirements retrospectively. In instances where we acquire assets from third parties, the prior owners of those assets may not have had the requisite federal, national, state and local approvals for certain of the sites we are acquiring. There is sometimes a long lead-time required for processing applications for approvals and licenses from the local authorities, including construction and building permits required from certain state authorities to construct or build any structure and environmental approvals. See Item 4.B. “Business Overview — Permits and Regulation — License to operate.” Although we make payments in relation to the relevant permits when required, the delay encountered in receiving the permits, licenses or certificates means that we may, therefore, in limited instances, proceed with and complete tower construction and base transmission sites installation for Tenants before all required approvals and licenses have been formally issued by local authorities. As we look to expand our offering to further include and expand on services like fiber connectivity, rural offerings and other verticals, we may be subject to increased regulatory, license and permit obligations (including in respect of active telecommunications elements that may comprise part of the arrangements with customers, such as for rural offerings, which may be based on an “open RAN” architecture). We may or may not be able to meet any and all such obligations.
Although we believe these practices are customary in the telecommunications industry in the countries in which we operate, there can be no assurance that the relevant authorities will issue the licenses or approvals, if required, or that they will be issued in a timely manner or as expected. If such approvals and licenses are required and not obtained, the local or state authorities may impose penalties, such as reprimands, warnings and fines, for non-compliance with the relevant licensing and approval requirements. In addition, in some jurisdictions, federal, national, state and local authorities charge taxes and levies in relation to similar services, for example tenement rates and environmental permits for our sites. This leads to confusion over which authority should be paid the relevant levy and in many cases we must wait for a demand to be made before we can make the payment.
Additionally, certain authorities have recently become more aggressive in setting of permit fees, the enforcement of permits and collection of payments, or may become more so in the event the profile of a business is perceived to have increased. In an extreme case, local authorities may prevent us from entering our sites or demand that we dismantle the unlicensed towers, which has occurred in certain limited cases. For example, in Nigeria, it was publicly reported in 2019 that the NCAA threatened to decommission and dismantle a number of Glo towers for safety violations including failure to obtain the statutory aviation height clearance certificate. It is reported that while no towers were ultimately decommissioned or dismantled by the NCAA, this was due to the affected operators complying with demands.
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In addition, in December 2019 the Federal Capital Development Authority, or FCDA, stopped the issuance of permits to communications infrastructure companies in the Federal Capital Territory while it sought to review and increase fees. The FCDA briefly resumed issuing new permits in 2021 which, following a further stoppage, resumed again during 2022 following the intervention of the regulator, the Nigerian Communications Commission, or NCC. However, while permit issuance has resumed and an agreement in principle has been reached with the FCDA, the final outcome of the intervention is still awaited as the approval of the Minister of the Federal Capital Territory is pending. A new Minister of the Federal Capital Territory was appointed by the new President following his inauguration in May 2023 but his approval or denial is pending. During previous periods when new permit issuances were on hold, the development and expansion of our business operations in Abuja (where we had 641 Towers as of December 31, 2023) was impacted, which consequently impacted the quality of service of remaining towers in operation in the area. If we are required to pay additional levies, penalties or fees, or relocate a material number of our Towers and cannot locate replacement sites that are acceptable to our customers, this could adversely affect revenue and cash flow, which in turn could have a material adverse effect on our reputation, business, prospects, financial condition and/or results of operations.
Our business is subject to regulations, including those governing telecommunications, as well as the construction and operation of Towers, and any changes in current or future laws or regulations could restrict our ability to operate our business.
Our business, and that of our customers, is subject to national, state and local regulations governing telecommunications as well as the construction and operation of Towers. These regulations and opposition from local zoning authorities and community organizations against construction in their communities could delay, prevent or increase the cost of new tower construction, modifications, additions of new antennas to a site, or site upgrades, thereby limiting our ability to respond to customer demands and requirements. In addition, certain licenses and permits for the operation of Towers may be subjected to additional terms, conditions or fees/levies (which may be new and unexpected, as a consequence, for example, of a perceived increase in a business’s profile or growth) or new permits imposed on existing sites, with which we cannot comply. As public concern over tower proliferation has grown in recent years, including as a result of concerns about alleged health and environmental risks, some communities now also try to restrict tower construction, delay granting permits or require certain towers to be dismantled and relocated. On the other hand, governments and regulators may impose additional requirements on businesses such as ours or our customers based on wider socio-economic considerations, including, potentially, requirements to construct New Sites in more remote or rural areas (or regulatory actions or pressure on pricing or packages on our customers or us, including potentially imposition of local currency pricing, as may have been seen in some markets) to increase geographical and network coverage to larger parts of a population (which may be less commercially viable for us) or make services available at lower or fixed tariffs. Existing regulatory policies and changes in such policies may materially and adversely affect the associated timing or cost of such projects and/or the costs attributable to our usual business operations, and additional regulations may be adopted which increase delays, or result in additional costs, or that prevent completion of projects in certain locations. As we look to expand our offering to further include and expand on services like fiber connectivity, rural offerings and other verticals, we may be subject to increased regulatory, license and permit obligations (including in respect of active telecommunications elements that may comprise part of the arrangements with customers, such as for rural offerings which may be based on an “open RAN” architecture). We may or may not be able to meet any and all such obligations. Any imposition of new regulations, fees or levies, or failure to complete new tower construction, modifications, additions of new antennas to a site, or site upgrades could harm our ability to add additional site space and grow our business, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Our operations are also subject to various other laws and regulations that affect our business, such as those related to labor, tax, employment (including new minimum wage regulations), unions, health and safety, antitrust and competition, environmental protection, consumer protection, data privacy and protection, import/export, foreign exchange or currency, and anti-bribery, corruption and money laundering. For example, we may become subject to increased costs as a result of a potential 7.5% VAT on imported diesel originally announced in May 2023, as referred to above (see “—Any increase in operating expenses or costs, particularly increased costs for diesel or ground lease costs, or an inability to pass through or mitigate against such costs, could erode our operating margins and could have a material adverse effect on our business, prospects, financial condition and/or results of operations”). We or our employees, subcontractors or agents could take actions that might violate any of these requirements. Violations, or alleged violations, of any such laws or regulations could subject us to criminal or civil enforcement actions and adversely affect our reputation, any of which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
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We may seek to raise financing to fund future growth opportunities or operating expense reduction strategies and the inability to do so may adversely affect our ability to implement our business strategy.
We may seek to raise financing to fund future growth opportunities, or operating expense reduction strategies, including debt and equity financing. Our ability to secure future debt or equity financing in amounts sufficient for strategic growth or cost reduction opportunities could be adversely affected by many factors, including achieving the requisite shareholder support for certain equity financing, or the possible reluctance of creditors to make commercial loans or to invest in operations in developing markets (including as a result of market or economic conditions or considerations relating to regulatory capital requirements) or otherwise. If our revenue declines, we may not be able to raise additional funds through debt or equity financing (or any debt or equity financing may not be on acceptable terms). Moreover, restrictive debt covenants under current and future indebtedness may limit our ability to raise any such further financing (or refinance existing financing) and also our ability to support our business strategy, including making strategic acquisitions. Additionally, political instability, a downturn in the economy and/or disruption in the financial and credit markets, foreign currency fluctuations, availability of foreign currency in the jurisdictions in which we operate, social unrest or changes in the regulatory environment (including as a result of regulatory capital requirements, or events with a wide-ranging regional or global impact such as health pandemics or epidemics) could increase the cost of borrowing or restrict our ability to obtain financing for future acquisitions and other growth or cost reduction opportunities.
There can be no assurance that we will be successful in obtaining financing from banks and other financial institutions and/or capital markets or that the cost of such financing or the other applicable terms of such financing will not make such financing more onerous than under the facilities available to us at present. If we are unable to raise the necessary financing, we may have to revise our business strategy or forgo certain strategic growth opportunities or operating expense reduction strategies, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Towers with MLL or ROU agreements are subject to termination risk.
As of December 31, 2023, we operated 1,881 towers under license to lease agreements in Cameroon and Côte d’Ivoire. We do not own these towers or the underlying land leases, but have a contractual right to operate the towers, including leasing out additional space on the towers. The MLL agreements may be terminated upon agreement of the parties if we fail to comply with specified obligations in the agreements or, in some cases, at the customer’s option. If we are unable to protect our rights under, or extend, the MLL agreements, or they are terminated, we will lose the cash flows derived from such towers, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations. In March 2022, we completed the GTS SP5 Acquisition to acquire 2,115 SP5 towers, of which 2,113 are operated under a right-of-use (ROU) agreement, where we do not own the towers or the underlying land leases, but have a contractual right to operate the towers, including leasing out additional space on the towers. The ROU agreement may be terminated upon agreement of the parties, if we fail to comply with specified obligations in the agreements or, in some cases, at the customer’s option. Additionally, as the anchor tenant from this portfolio holds a concession license that expires in December 2025 and such tenant holds the ultimate ownership right on those towers, a potential non-renewal of such concession could potentially cause the termination of the ROU agreement. If we are unable to protect our rights under, or extend, the ROU agreements or they are terminated, we will lose the cash flows derived from such towers, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We provide Managed Services to towers that are owned or operated by third parties. Our inability to access these sites or to perform the services in accordance with our requirements could have a material adverse effect on our business and/or operating results.
We currently provide Managed Services to certain sites for our customers, which includes the provision of maintenance, security or power services, including on sites that we may not own (such as the agreement with MTN South Africa to provide power Managed Services as part of the MTN SA Acquisition), as well as the sites acquired through the MTN SA Acquisition. Sites where we provide Managed Services may be owned by the relevant customer the services are being provided for, or by other third parties. In these instances, we need to coordinate the provision of our services in line with the customer requirements as well as in accordance with the owner or operator of the tower. This includes ensuring that we have appropriate access to the relevant sites and that our equipment is adequately protected. If we are unable to perform our services under our Managed Services agreements (whether to a satisfactory level or otherwise), we may suffer penalties, the termination of such services or the loss of our equipment, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
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Failure to effectively operate, or successfully execute upgrades to, our group-wide enterprise resource planning, or ERP, system could have a material adverse effect on our business and/or operating results.
We have been assessing various technology upgrades and enhancements to support our business growth, including potentially a significant multi-year upgrade of our group-wide ERP system. The implementation of new software and hardware involves risks and uncertainties that could cause disruptions, delays or deficiencies in the design, implementation or application of these systems. The failure of our ERP to operate effectively or to integrate with other systems, or a breach in security of these systems, could cause reduced efficiency of our operations, which could negatively impact our financial results. If we experienced any significant disruption to our ERP that we are unable to mitigate, or if any upgrades are significantly delayed or the system does not perform in a satisfactory manner or in line with business requirements, it could introduce operational risk, including cybersecurity risks, and other complications, be disruptive, and could have a material adverse effect on our operations, including our ability to report accurate, timely and consistent financial results or otherwise maintain adequate internal control over financial reporting or our ability to integrate new acquisitions into our systems. We may also lose an opportunity to further improve business efficiency, process standardization, and internal controls over financial reporting across our operations.
Furthermore, the implementation of any ERP system upgrade or any remediation of our key information systems requires investment of capital and human resources, including substantial expenditures for outside consultants, suppliers, system hardware and software in addition to other expenses, the re-engineering of business processes, and the attention of many employees who would otherwise be focused on other areas of our business. We may also experience delays, increased costs and other difficulties, including potential design defects, re-work due to changes in business plans or reporting standards, and the diversion of management’s attention from day-to-day business operations. If we are not able to accurately forecast expenses and capitalized costs related to system upgrades and repairs, our financial condition and operating results may be adversely impacted. The implementation of new initiatives or upgrades and remediation of existing systems may not achieve the anticipated benefits and may divert management’s attention from other operational activities, negatively affect employee morale, or have other unintended consequences.
We also rely on third-party contractors and suppliers to provide various related services (including ongoing support and management of systems and issues) and are therefore exposed to risks relating to the quality and reliability of such services. “— We rely on third-party contractors for various services, and any disruption in or non-performance of those services would hinder our ability to effectively maintain our tower infrastructure.”
Management has identified a material weakness in our internal control over financial reporting, which could affect our ability to produce accurate financial statements on a timely basis or cause us to fail to meet our future reporting obligations.
We are required to comply with the SEC’s rules implementing Sections 302 and 404 of the Sarbanes-Oxley Act, which requires management to certify financial and other information in our annual reports and provide an annual management report on the effectiveness of internal control over financial reporting.
In connection with the audit of our consolidated financial statements, we identified a material weakness in our internal control over financial reporting (see Item 15. “Controls and Procedures”) and, accordingly, concluded that our internal control over financial reporting was not effective as of December 31, 2023. Under PCAOB standards, a “material weakness” is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim consolidated financial statements will not be prevented or detected on a timely basis. The material weakness identified is a lack of key accounting personnel with the requisite knowledge and experience to account for complex transactions, particularly in the areas of foreign exchange, business combinations and other complex, judgmental areas, such as goodwill impairment assessment.
We have been working to remediate this material weakness as quickly and efficiently as possible (see Item 15. “Controls and Procedures”). However, we cannot assure you that the measures we have taken to date or that we are taking will be sufficient to remediate in its entirety the material weakness we identified or avoid the identification of additional material weaknesses in the future. We cannot provide an estimate of the time required or costs expected to be incurred in connection with implementing a remediation plan. Remediation measures may be time consuming, costly, and might place significant demands on our financial and operational resources. If we are unable to successfully remediate this material weakness or if new material weaknesses arise in the future, and if we are unable to produce accurate and timely financial statements, our financial statements could contain material misstatements that, when discovered in the future, could cause us to fail to meet our future reporting obligations.
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As of December 31, 2023, we have remediated the previously identified material weaknesses in relation to:
| ● | Lack of an adequate process and procedures surrounding the accounting for the acquisition of property, plant and equipment and utilization of advance payments made to contractors for the provision and construction of property, plant and equipment impacting the timely recognition of assets and commencement of depreciation. |
| ● | Lack of appropriate internal communication, documentation of the facts, circumstances and judgements taken by management, resulting in the incomplete recording of transactions related to the recognition and settlement of revenues and receivables where the amounts concerned were subject to dispute or deferred invoicing. |
However, there can be no assurance that we will not identify the same material weaknesses in relation to similar transactions in the future, or that our remediation efforts will prevent other related issues.
A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the control system’s objectives will be met. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements whether due to error or fraud. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Additionally, as we now qualify as a large accelerated filer, we must include an attestation report on internal control over financial reporting issued by our independent registered public accounting firm. Based on the material weakness identified as of December 31, 2023, our independent registered public accounting firm issued an adverse opinion with respect to internal control over financial reporting as of December 31, 2023 (see Item 18. “Financial Statements”). In addition, we may be subject to sanctions or investigation by regulatory authorities, such as the SEC or the NYSE on which our ordinary shares are listed. If we do not maintain an effective system of internal control over financial reporting in the future, or otherwise adequately comply with the requirements of Section 404 of the Sarbanes Oxley Act, our independent registered public accounting firm may in the future identify a significant deficiency or material weakness in our internal control over financial reporting, and again issue an adverse opinion with respect to internal control over financial reporting.
As a result of misstatements or restatements in our financial statements or adverse assessment by management or our independent registered public accounting firm about the effectiveness of our internal controls, we may have to delay our filings of our financial statements, and there could be an adverse reaction to the financial statements or the Company due to a loss of confidence in the reliability of our financial statements which could materially adversely affect our business, prospects, financial condition and/or results of operations, and could also cause the price or trading volume of our ordinary shares to decline and there could be a delay in delivering financial statements, which may result in a default under agreements governing our indebtedness.
Our sites contain sensitive and fragile equipment and indemnities obtained from suppliers and contractors may be inadequate to cover any losses or damages to our customers’ property.
Our sites host sensitive and fragile communications equipment, which could be damaged by actions of our maintenance subcontractors, suppliers or the original equipment manufacturer who may be present on our sites during the course of their duties. While we strive to obtain contractual indemnities and insurance protections from our maintenance subcontractors and suppliers with respect to damage to our property and those of our customers, such contractual rights to indemnity may not adequately cover all losses and/or we may not be able to recover such losses due to protracted litigation, defenses successfully raised by the counterparty and/or insolvency of the subcontractor or supplier, which may lead to increased costs and in turn could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We rely on key information technology systems, which may be vulnerable to physical or digital/electronic damage, security breaches or cyber-attacks that could have a material adverse effect on our reputation as well as our business, prospects, financial condition and/or results of operations.
We rely on information technology to conduct our daily business, financial reporting, procure products, pay suppliers, communicate internally and externally, share files, and efficiently and accurately provide services to our customers and monitor our operations, including via the operation of our network operations centers, which is key to our site maintenance and performance management. While we seek to apply best practice policies and internal controls, and devote significant resources to network and application security and other security measures to protect our information technology and communications systems and data, these measures cannot provide absolute security.
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In addition, the tools used by cyber criminals including artificial intelligence, continue to evolve, in order to circumvent such security measures and maximize the potential damage of a successful attack. Some of our networks are also managed by third-party service providers and are not under our direct control. Third (and beyond) parties have been a popular attack vector for cyber criminals, and depending on the nature of the relationship with some of these partners, we sometimes use their code, software, human-power, networks, or give them access to our servers and data, among many other scenarios. A security vulnerability at any of these third-party partners could potentially provide an opportunity for a cyber criminal to reach or damage our networks or data. Despite existing security measures, certain parts of our infrastructure, including, for example, our fiber infrastructure network for the provision of residential broadband services to consumers, may be vulnerable to damage, disruptions, or shutdowns due to unauthorized access, software bugs, phishing attacks, employee errors, computer viruses, cyber-attacks, and other security breaches, particularly in times of increased usage and reliance such as during and following the COVID-19 pandemic. In addition, many types of cyberattacks are designed to be difficult to detect in order to harvest as much data or cause as much systemic damage as possible before detection. As a result, in the event of a cyberattack our systems could be compromised without our knowledge for a period of time before the attack is detected and addressed. The performance of our information technology systems may also be impacted by certain operating conditions in our jurisdictions of operation, including lack of reliable power supply, shortages in replacement parts, as well as general security conditions. In addition, if our employees are required to work from home as a result of global or regional health pandemics or epidemics, our information technologies and systems may be particularly strained or increasingly vulnerable. An attack attempt or security breach, such as a distributed denial of service attack, or damage caused by other means could potentially result in the interruption or cessation of certain or all of our services to our customers, our inability to meet expected levels of service or data transmitted over our customers’ networks being compromised, as well as other unforeseen damages. In the event of a potential breach, while we would endeavor to comply with any applicable requirements to inform impacted parties within a reasonable time, priority may be given to containing and eliminating the cyberattack in order to limit the damage; which as a result could potentially delay our communication of the identified attack to customers, suppliers, concerned regulatory bodies, agencies or authorities or other relevant parties.
In addition, we may collect, store and process certain sensitive data (either in respect of our personnel, or from our customers, end-users or suppliers), which makes us a potentially vulnerable target to cyber-attacks, computer viruses, physical or electronic break-ins or similar disruptions or data theft. While we have taken steps to protect the confidential information that we have access to, our security measures could be breached. Because the techniques used to sabotage or obtain unauthorized access to systems change frequently and generally are not recognized until they are launched against a target, we may not be able to anticipate these techniques or implement adequate preventative measures. Any accidental or willful security breaches or other unauthorized access to our system could cause any such confidential information to be stolen and used for criminal purposes. Security breaches or unauthorized access to confidential information could also expose us to liability related to the loss of the information, time-consuming and expensive litigation and negative publicity. If our security measures are breached because of third-party action, employee error, malfeasance or otherwise, or if design flaws in our technology infrastructure are exposed and exploited, our relationships (in particular, those with our customers) could be severely damaged, we could incur significant liability and it could have a material adverse effect on our business and operations. Moreover, as a result of the increasing awareness concerning the importance of safeguarding personal information, the potential misuse of such information and legislation that has been adopted or is being considered in some of our markets regarding the protection, privacy and security of personal information, information-related risks are increasing. Failure to comply with any such data protection laws may result in, among other consequences, fines, litigation or regulatory actions. Any failure or perceived failure by us to prevent information security breaches or to comply with privacy policies or privacy-related legal obligations, or any compromise of security that results in the unauthorized release or transfer of personally identifiable information or other customer or end-user data, could cause our customers to lose trust in us and could expose us to legal claims.
We cannot guarantee that our security and power back-up measures will not be circumvented or fail, resulting in customer network failures or interruptions that could impact our customers’ network availability, potentially resulting in penalties for failure to meet targeted quality levels, as well as otherwise having a material adverse effect on our business, reputation, financial condition and/or operational results. We may be required to spend significant resources to protect against or recover from such threats and attacks. In addition, as we implement new information technology systems, we cannot guarantee that our new security measures will be sufficient. If an actual or perceived breach of our security occurs, the market perception of the effectiveness of our security measures could be harmed, and we could lose customers. Further, the perpetrators of cyber-attacks are not restricted to particular groups or persons. Our employees or external actors operating in any geography may commit these attacks. Any such events could result in legal claims or penalties, disruption in operations, misappropriation of sensitive data, damage to our reputation, negative market perception, or costly response measures, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
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We could have liability under health, safety and environmental laws or fail to accurately report on or meet our sustainability metrics and targets.
Our operations are subject to the requirements of various environmental and occupational safety and health laws and regulations, including those relating to the management, use, storage, disposal, emission and remediation of, and exposure to, hazardous and non-hazardous substances, materials, waste, as well as items related to our day-to-day operations such as transport and construction. As an operator of communications infrastructure that has a heavy reliance on diesel, we may purchase diesel in large quantities that is then stored at our facilities. As the owner, lessee or operator of these facilities, we may be liable for substantial costs or remediation under health, safety and environment laws in the event that there is leakage or spillage from these storage facilities. As the owner, lessee or operator of communications sites, we may be liable for the substantial costs of remediating soil and groundwater contaminated by hazardous materials, without regard to whether we, as the owner, lessee or operator, knew of or were responsible for the contamination. Many of these laws and regulations contain information reporting and record-keeping requirements, which may be burdensome for us or have high costs associated with compliance, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
There can be no assurance that we are or will be in full compliance with all environmental requirements at all times. For example, many of our sites rely on the use of carbon-emitting power systems, and at the time of acquisition, certain towers acquired from other companies may not be compliant with environmental regulations or may lack certain environmental permits. We may be subject to potentially significant fines, penalties or criminal sanctions if we fail to comply with any of these requirements. The requirements of these laws and regulations are complex, change frequently, and could become more stringent in the future. It is possible that liabilities will arise in the future in a manner that could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Failure to provide a safe and healthy working environment in accordance with the relevant applicable legislation, including as a result of health pandemics or epidemics (such as COVID-19) and any related measures imposed in the markets in which we operate, may result in government authorities forcing closure of sites on a temporary or permanent basis or refusing lease or license applications. Working conditions, including aspects such as weather and temperature, can add to the inherent dangers.
While we have invested, and will continue to invest, substantial resources in our occupational health, safety and security programs, there can be no assurance that we will avoid significant liability exposure. We may not be able to deliver a sustained improvement in safety performance if management interventions and training initiatives fail to translate into behavioral change by all employees, contractors and/or suppliers. Non-compliance with critical controls is a common failure in safety incidents which can lead to loss of life, workplace injuries and safety-related stoppages, all of which immediately impact operational performance and, in the long term, threaten our ability to operate as intended.
Given the high degree of operational risk in our industry, we have suffered fatalities in the past and may suffer additional fatalities in the future. Serious accidents, including fatalities, may subject us to civil or criminal fines and penalties, liability to employees and third parties for injury, illness, or death and other financial consequences, which may be significant. In addition, if our safety record were to deteriorate over time or we were to suffer substantial penalties or criminal prosecution for violation of health and safety regulations, our customers could cancel our contracts and elect to procure future services from other providers. Unsafe work sites also have the potential to increase employee turnover, increase the costs of projects for our customers, and raise our operating costs. We could also suffer impairment to our reputation, industrial action or difficulty in recruiting and retaining skilled employees and contractors. Any future changes in laws, regulations or community expectations governing safety of our operations could result in increased compliance and remediation costs.
Any of the foregoing developments could have a material adverse effect on our results of operations, cash flows and/or financial condition. Moreover, there has been increasing public focus, including by investors, customers, environmental activists, the media and governmental and nongovernmental organizations, on a variety of environmental, social and other sustainability matters. This emphasis on environmental, social and other sustainability matters has resulted and may result in the adoption of new laws and regulations, including new reporting requirements as well as our adoption of new voluntary reporting. If we fail to comply with new laws, regulations or reporting requirements or there are inaccuracies in our reporting or we fail to achieve expected or anticipated metrics, targets or sustainability initiatives, our reputation and business could be materially adversely impacted.
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Revenue and/or costs could be adversely affected due to perceived health risks from radio emissions, particularly if these perceived risks are substantiated.
Public perception of possible health risks, including any perceived connection between radio frequency emissions associated with cellular and other wireless communications technology and certain negative health effects, could interrupt or slow the growth of wireless companies. In particular, negative public perception of, and regulations regarding, these perceived health risks could increase opposition to the development and expansion of tower sites. There have been instances in certain telecommunication markets globally where towers have been vandalized due to perceived health risks associated with 5G technology, including potentially related to health pandemics or epidemics (such as during the COVID-19 outbreak) as well. The potential connection between radio frequency emissions and certain negative health effects has been the subject of substantial study by the scientific community in recent years, and numerous health-related lawsuits have been filed around the world against wireless carriers and wireless device manufacturers. If a scientific study or court decision resulted in a finding that radio frequency emissions posed health risks to consumers, it could negatively impact the market for wireless services, which could have a material adverse effect on our business, prospects, financial condition and/or results of operation. We do not maintain any significant insurance with respect to these matters.
We may experience local community opposition to some of our sites or other communications infrastructure.
It is normal in the industry to experience, and we may in the future experience, local community opposition to our existing tower sites or the construction of new towers or deployment of other communications infrastructure assets for various reasons, including concerns about alleged health risks and noise or nuisance complaints. See “— Revenue and/or costs could be adversely affected due to perceived health risks from radio emissions, particularly if these perceived risks are substantiated.” As a result of such local community opposition, we could be required by the local authorities to dismantle and relocate certain tower sites or other communications infrastructure. If we are required to relocate certain tower sites or other communications infrastructure and cannot locate replacement sites that are acceptable to our customers, it could materially and adversely affect our revenue and cash flow, which in turn could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Our insurance may not provide adequate coverage for natural disasters, security breaches and other unforeseen events.
We may not carry insurance for all categories of risk that our business may encounter. Our business assets are subject to risks associated with natural disasters, such as windstorms, floods and hurricanes, including any impact of climate change, as well as theft, particularly of diesel or batteries, vandalism, terror attacks and other unforeseen damage. In certain instances, such as where we store diesel at our facilities, we may be unaware that theft of the diesel is taking place, despite controls that we have in place to prevent this, rendering insurance covering such theft ineffective. In addition, in the event a tower has been constructed in a substandard manner, is overloaded or has not been properly maintained, it may be at risk of collapse or damage. Any damage or destruction to our towers as a result of these or other risks would impact our ability to provide services to our customers. While we maintain insurance to cover the cost of replacing damaged towers, and business interruption insurance and general liability insurance to protect ourselves in the event of an accident involving a tower, we might have claims that exceed our coverage under our insurance policy or claims may be denied and, as a result, the insurance may not be adequate. Insurance may not adequately cover all lost revenue, including revenue lost from new tenants that could have been added to the towers but for the damage. In addition, while we maintain insurance coverage with respect to certain claims, we may not be able to renew or obtain such insurance on acceptable terms in the future, if at all, and any such insurance may not provide adequate coverage against any such claims. Any significant uninsured losses or liabilities may require us to pay substantial amounts, which would reduce our working capital and could have a material adverse effect on our business, financial condition and/or results of operations. If we are unable to obtain adequate insurance coverage or provide services to our customers as a result of damage to our towers, it could lead to customer loss, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
While we seek to purchase insurance from financially strong, reputable insurance companies there can be no guarantee that such insurers will be able to pay claims when they arise due to liquidity or solvency reasons. Any delay or shortfall in receipt of insurance proceeds could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
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Maintenance of Towers could subject us to liability for property damage or other accidents.
There are risks inherent in the maintenance and use of Towers. Upon acquisition of a new Tower, we update and conduct maintenance to bring such Towers into compliance with our operational and safety standards. The collapse of a Tower, or portion of a Tower, due to known defects we have been unable to address or unforeseen defects, or due to improper maintenance or otherwise, could cause injury to or death of individuals or damage to surrounding property. Further, maintenance work on Towers is inherently dangerous and accidents could result in injury to or death of maintenance workers or other parties. Any such damage or accident could subject us to third-party claims regarding our potential liability, even in cases where we have outsourced maintenance work to third parties. We could incur significant costs defending any such claims and, if we were found liable, paying any resulting claims, either of which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We are subject to the effects of climate change.
There are inherent climate-related risks wherever business is conducted. Certain of our facilities, including our Towers, as well as third-party infrastructure on which we rely, are located in areas that have experienced, and are projected to continue to experience, various meteorological phenomena (such as drought, heatwaves, wildfire, storms, and flooding, among others) or other catastrophic events that may disrupt our or our suppliers’ operations, cause damage or loss to our Towers or other assets, limit the availability of resources, result in additional costs, delay or prevent the completion of projects in certain locations, or otherwise adversely impact our business, financial condition, or results of operations. Climate change may increase the frequency and/or intensity of such events. Climate change may also contribute to various chronic changes in the physical environment, such as sea-level rise or changes in ambient temperature or precipitation patterns, which may also adversely impact our or our suppliers’ operations. Some countries in which we operate rely on the generation of electricity through hydro-electric schemes. If changing weather patterns cause water shortages or prolonged droughts in those countries or regions, that may affect our ability to deliver services to our customers. While we may take various actions to mitigate our business risks associated with climate change, this may require us to incur substantial costs and may not be successful, due to, among other things, the uncertainty associated with the longer-term projections associated with managing climate risk. For example, to the extent catastrophic events become more frequent, it may adversely impact the availability or cost of insurance.
Additionally, we expect to be subject to risks associated with societal efforts to mitigate or otherwise respond to climate change, including but not limited to increased regulations, evolving stakeholder expectations, and changes in market demand. For more information, see “— Increased attention to, and evolving expectations for, sustainability and environmental, social, and governance (“ESG”) initiatives could increase our costs, harm our reputation, or otherwise adversely impact our business.” Any of the foregoing factors could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We may become party to disputes and legal, tax and regulatory proceedings or actions.
In the ordinary course of business, we have been, are and may in the future be, named as a defendant or an interested party in legal, tax, regulatory and/or law enforcement actions, proceedings, claims and disputes by governments, regulators, entities or individuals in connection with our business activities. In certain of the jurisdictions in which we operate, there may be a higher likelihood that such actions, proceedings, claims and disputes may be brought by governments, regulators, entities or individuals for fees, taxes or other payments, even if meritless or frivolous under applicable law, and these actions, proceedings, claims and disputes may increase as the profile of our business rises along with the continued growth and development of our business. Any such investigations, actions, litigation, disputes or proceedings, as well as lawsuits initiated by us for the collection of payables, may be costly, may in certain circumstances require us to dismantle tower sites, may be harmful to our reputation and may divert significant management attention and other resources away from the business, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Similarly, any material litigation could have a material adverse effect on our business and we may not have established adequate provisions for any potential losses associated with litigation not otherwise covered by insurance, which could have a material adverse effect on our prospects, business, financial condition and/or results of operations. Additionally, any negative outcome with respect to any legal actions in which we are involved in the future could require payment of fines, penalties or judgments in amounts that could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
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Disputes with customers have in the past, and could again lead to a termination of agreements with customers or a material modification of the terms of those agreements, either of which could have a material adverse effect on our business, prospects, financial condition and/or results of operations. If we are forced to resolve any of these disputes through litigation, our relationship with the applicable customer could be terminated or damaged, which could lead to decreased revenue or increased costs, and could have a material adverse effect on our reputation as well as our business, prospects, financial condition and/or results of operations.
In addition, we have been, are and may in the future be, subject to regulatory and/or law enforcement investigations, actions or proceedings from time to time. In 2017, certain of our bank accounts had “post no debit” restrictions placed on them during the course of certain inquiries by the Nigerian Economic and Financial Crimes Commission, or EFCC, and, until the restriction on the bank accounts was lifted during the latter half of 2018, we were unable to access approximately $197 million. Currently, no amounts remain restricted pursuant to those restrictions (and we were not notified of any formal allegation or investigation against us), however we cannot guarantee that regulators or other authorities or agencies will not take a similar approach should they undertake investigations or inquiries in the future, irrespective of the veracity of any potential claim or severity of any potential outcome.
In 2019, the Federal Competition and Consumer Protection Act, or FCCP Act, became law, introducing competition regulations in Nigeria. Pursuant to the FCCP Act, the Federal Competition and Consumer Protection Commission, or FCCPC, is authorized to designate the market share that would constitute a dominant market share for the purposes of the FCCP Act. The FCCPC has overarching powers to regulate competition in Nigeria, and when its regulatory powers overlap with those of an industry-specific regulator, such as the NCC in the area of competition and consumer protection, the FCCPC takes precedence and the two bodies must otherwise work together to regulate competition in that specific industry. In April 2022, the NCC commenced a study on the level of competition in the colocation and infrastructure sharing market segment of the Nigerian telecoms industry. While we understand that the study has been concluded, the report has not been issued by the NCC. Given that we are the leading provider of passive communications infrastructure services in Nigeria, the FCCPC and the NCC may determine that we are in a dominant position in the market and, in an effort to ensure that there is no abuse of market position or if it is deemed that we have abused a dominant position, may commence a regulatory inquiry or action, levy fines, or otherwise require pricing or other modifications of our contract terms or impose restrictions on our ability to build New Sites or operate existing sites. In addition, where we are required to appear before the tribunal of the FCCPC, the tribunal has the power under certain circumstances to order us to sell a portion or all of our shares, interests or assets.
On June 30, 2023, Oranje-Nassau Developpement S.C.A., FIAR (“Wendel”) formally commenced Court proceedings in the Cayman Islands calling for specific performance and/or an injunction related to our obligations under the shareholders agreement dated as of October 13, 2021 (the “Shareholders Agreement”). On July 12, 2023, the Company acknowledged the service in the Cayman Court, noting that it intends to contest the proceedings. On January 16 2024, the Company and Wendel announced that we had entered into a settlement agreement in relation to the ongoing litigation, and that as part of the settlement agreement, certain changes to our Articles of Association will be proposed for shareholders’ approval at our annual general meeting for fiscal year 2024. While these proceedings have been settled, there is no assurance that further or other proceedings may not take place, by Wendel or other stakeholders, whether in relation to similar matters or otherwise.
Additionally, in the ordinary course of business, we are subject to regular tax reviews. A number of tax audits have been raised in multiple jurisdictions, some of which are ongoing, including in Nigeria. There can be no assurance that such ongoing audits or future audits will not result in material liability which could, in turn, have an adverse effect on our business, prospects, financial condition and/or results of operations.
There could be material adverse tax consequences for our shareholders in the United States if we are classified as a “passive foreign investment company” for United States federal income tax purposes.
Under United States federal income tax laws, if a company is, or for any past period during which a United States shareholder held shares in such company was, a passive foreign investment company, or PFIC, it could have adverse United States federal income tax consequences to such United States shareholder even if the company is no longer a PFIC. We do not believe that we currently are or have been a PFIC for the taxable year ending December 31, 2023, and we do not expect to be a PFIC in the future. However, the determination of whether we are a PFIC is a factual determination made annually based on all the facts and circumstances after the close of each taxable year, and the principles and methodology used in determining whether a company is a PFIC are subject to ambiguities and different interpretations. Therefore, we cannot assure you that we will not be a PFIC for the current taxable year or in the future. If we are a PFIC, United States shareholders would be subject to adverse U.S. federal income tax consequences. United States purchasers of our ordinary shares are urged to consult their tax advisors concerning United States federal income tax consequences of holding our ordinary shares if we are considered to be a PFIC.
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See the discussion under Item 10.E. “Taxation—Material United States Federal Income Tax Considerations.”
If a United States person is treated as owning at least 10% of the ordinary shares, such holder may be subject to adverse U.S. federal income tax consequences.
If a United States person is treated as owning (directly, indirectly, or constructively) at least 10% of the value or voting power of the ordinary shares, such person may be treated as a “United States shareholder” with respect to each “controlled foreign corporation” in the Group (if any). A United States shareholder of a controlled foreign corporation may be required to report annually and include in its U.S. taxable income its pro rata share of “Subpart F income,” “global intangible low-taxed income,” and investments in U.S. property by controlled foreign corporations, regardless of whether the Company makes any distributions. An individual that is a United States shareholder with respect to a controlled foreign corporation generally would not be allowed certain tax deductions or foreign tax credits that would be allowed to a United States shareholder that is a U.S. corporation. Failure to comply with these reporting obligations may subject a United States shareholder to significant monetary penalties and may prevent the statute of limitations with respect to such United States shareholder’s U.S. federal income tax return for the year for which reporting was due from starting. The Company cannot provide any assurances that it will assist holders of the ordinary shares in determining whether any of its non-U.S. subsidiaries is treated as a controlled foreign corporation or whether any holder of the ordinary shares is treated as a United States shareholder with respect to any such controlled foreign corporation or furnish to any United States shareholders information that may be necessary to comply with the aforementioned reporting and tax paying obligations. A U.S. Holder (as defined in Item 10.E. “Taxation—Material United States Federal Income Tax Considerations.”) should consult its advisors regarding the potential application of these rules to an investment in the ordinary shares.
Changes in our rates of taxation, and audits, investigations and tax proceedings could have a material adverse effect on our financial condition and/or results of operation.
We are subject to direct and indirect taxes in numerous jurisdictions. We calculate and provide for such taxes in each tax jurisdiction in which we operate. The amount of tax we pay is subject to our interpretation of applicable tax laws in the jurisdictions in which we file. We will seek to run IHS Holding Limited in such a way that it is and remains tax resident in the United Kingdom. We have taken and will continue to take tax positions based on our interpretation of tax laws, but tax and/or accounting often involves complex matters and judgement is required in determining our worldwide provision for taxes and other tax liabilities.
Although we believe that we have complied with all applicable tax laws, there can be no assurance that a taxing authority will not have a different interpretation of the law and assess us with additional taxes (and possibly related interest and/or penalties).
We are subject to ongoing tax audits in various jurisdictions. Tax authorities have disagreed, and may in the future disagree, with our judgements. We regularly assess the likely outcomes of these audits to determine the appropriateness of our tax liabilities. However, our judgements might not be sustained as a result of these audits, and the amounts ultimately paid could be different from the amounts previously recorded and such amounts could be material. In addition, our effective tax rate in the future could be adversely affected by changes in the mix of earnings in countries with differing statutory tax rates, changes in the valuation of deferred tax assets and liabilities and changes in tax laws. Tax rates in the jurisdictions in which we operate may change as a result of macroeconomic, political or other factors. Increases in the tax rate in any of the jurisdictions in which we operate could have a negative impact on our profitability. In addition, changes in tax laws, treaties or regulations, or their interpretation or enforcement, may be unpredictable, particularly in the types of markets in which we operate (such as emerging markets), and could become more stringent, which could materially adversely affect our tax position. Any of these occurrences could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Future changes to tax laws could materially adversely affect us and reduce net returns to our shareholders.
Our tax treatment is subject to changes in tax laws, regulations, tax policy initiatives and reforms in jurisdictions in which we operate. In addition, our tax treatment may also be affected by tax policy initiatives and reforms related to the Organization for Economic Co-Operation and Development, or the OECD, the work of the OECD/G20 Inclusive Framework on Pillar One and Pillar Two of the base erosion and profit shifting BEPS project and other initiatives.
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Such changes may include (but are not limited to) the taxation of operating income, investment income, interest income, dividends received or dividends paid. We are unable to predict what tax reform may be proposed or enacted in the future, possibly with retroactive effect, or what effect such changes would have on us. Any such changes could affect our financial position and overall or effective tax rates in countries where we have operations, reduce post-tax returns to our shareholders, and increase the complexity, burden and cost of tax compliance.
Legislation has been enacted or is currently under consideration in a number of jurisdictions to adopt and implement Pillar Two of the BEPS project to introduce a global minimum tax rate of 15% for certain multinational enterprises. The UK government has legislated to implement the Pillar Two income inclusion rule by introducing a multinational top-up tax and the domestic top-up tax for certain large multinational enterprises for accounting periods beginning on or after December 31, 2023. This will apply to groups headed by UK resident companies with annual group revenue exceeding €750 million. A tax liability may apply in cases where profits arise to group entities in jurisdictions which are taxed below the minimum rate of 15%. In the case of IHS Holding Limited, this will apply for the year ended December 31, 2024 onwards. Further changes related to Pillar Two, when enacted by the other various jurisdictions in which we do business, may increase our liability to taxes in those countries. As these changes are subject to implementation by each country, the timing and ultimate impact of any such changes on our tax obligations remains uncertain.
In April 2023, the United Arab Emirates enacted legislation to introduce corporate income tax on certain categories of income which may apply to our companies resident in the United Arab Emirates from the year ended December 31, 2024 onwards. The detailed application of the legislation is not yet certain and may be subject to future changes in interpretation and legislation, which could have further adverse implications.
Certain countries in which we operate may treat the indirect change of ownership of our subsidiaries as triggering tax charges.
Changes in the indirect ownership of our subsidiaries resulting from a transfer of our shares can represent a taxable event in certain circumstances in some jurisdictions in which certain of our subsidiaries are located. The applicable taxes may include taxes on capital gains and transfer taxes. Depending on the jurisdiction, the liability can potentially fall on our shareholders (existing or new) or one of our underlying subsidiaries. In jurisdictions where such rules apply, the scope of the legislation and the practical application by the tax authorities can be somewhat uncertain and therefore there is a risk of such liabilities arising, either to one of our subsidiaries or to a shareholder.
In several jurisdictions in which we operate, it is possible that transfers of our shares could still give rise to tax liabilities for our shareholders. Some of the relevant jurisdictions do not provide clear guidance to exempt the sale of listed shares from the scope of these rules and there may be a higher risk with regards to substantial disposals or acquisitions of our shares. We will take all steps which are reasonably available to us within the legislation of the relevant jurisdictions to mitigate such risks for shareholders, but cannot guarantee that the relevant tax authorities will not seek to impose capital gains or transfer taxes on a shareholder upon transfers of our shares. Prospective investors should consult their tax advisors regarding the potential application of these rules to an investment in our shares.
We are exposed to the risk of violations of anti-bribery and anti-corruption laws or other similar regulations.
We operate and conduct business in various emerging and less developed markets (including Africa, the Middle East and Latin America), and we may expand into additional markets, which at times experience high levels of fraud, bribery and corruption. We are subject to the applicable anti-corruption laws and regulations of the markets in which we operate, including the U.S. Foreign Corrupt Practices Act of 1977, or the FCPA, and the UK Bribery Act 2010, or the UK Bribery Act. The FCPA prohibits providing, offering, promising, or authorizing, directly or indirectly, including potentially through third party agents acting on our behalf, anything of value (such as cash and cash equivalents, travel expenses, gifts, entertainments, charitable donations, in-kind services and so on.) to non-U.S. government officials, political parties, or candidates for political office for the purposes of obtaining or retaining business or securing any improper business advantage. As part of our business, we are regularly required to deal with regulators, government ministries, departments and agencies to obtain permits and licenses to operate our business. We also periodically enter into joint ventures with government ministries, departments and agencies in the ordinary course of our business. The employees of these regulators and government ministries, departments and agencies may be considered government officials for the purposes of the FCPA. The provisions of the UK Bribery Act extend beyond bribery of government officials and are broader than the FCPA in a number of other respects, including jurisdiction, non-exemption of facilitation payments and penalties. In particular, the UK Bribery Act (unlike the FCPA) also applies to the active payment of bribes to private persons (i.e. non-government officials) as well as the passive receiving of bribes. Furthermore, unlike the vicarious liability regime under the FCPA, whereby corporate entities can be liable for the acts of its employees, the UK Bribery Act introduced a new offense applicable to corporate entities and partnerships which carry on part of their business in the United Kingdom that fail to prevent bribery, which can take place anywhere in the world, by associated persons who perform services for or on behalf of them, subject to a defense of having adequate procedures in place to prevent the bribery from occurring.
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This strict liability offense under the UK Bribery Act can render corporate entities criminally liable for the acts (including those with no criminal intent) of their employees, agents, joint venture partners, or commercial partners even if done without their knowledge.
Public companies listed in the United States are required to maintain records that accurately and fairly represent their transactions and have an adequate system of internal accounting controls. We maintain internal controls, policies, procedures and training to ensure compliance by us and our directors, officers, employees, representatives, consultants, and agents with the FCPA, UK Bribery Act and other applicable anti-corruption laws and make efforts to ensure their effectiveness. However, we can make no assurance that the controls, policies and procedures, even if enhanced, have been or will be followed at all times or effectively detect and prevent all violations of the applicable laws and every instance of fraud, bribery and corruption. As a result, we could be subject to potential civil or criminal penalties, disgorgement and other sanctions and remedial measures and legal expenses under the relevant applicable law, which could have material adverse effects on our business, prospects, financial condition and/or results of operations if we fail to prevent any such violations or are the subject of investigations into potential violations, which may result in a significant diversion of management’s attention and resources and significant defense costs and other professional fees. In addition, such violations could also negatively impact our reputation and, consequently, our ability to win future business. Any such violation by competitors, if undetected, could give them an unfair advantage when bidding for contracts. The consequences that we may suffer due to the foregoing could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We are subject to certain export controls, trade and economic sanctions laws and regulations that could impair our ability to compete in international markets and subject us to liability for non-compliance.
Our business activities may, at times, be subject to various export controls and trade and economic sanctions laws and regulations, including, without limitation, the U.S. Export Administration Regulations administered by the Bureau of Industry and Security of the U.S Department of Commerce, the trade and economic sanctions programs administered and enforced by the U.S. Treasury Department’s Office of Foreign Assets Control, or OFAC, and the U.S. State Department’s Nonproliferation Sanctions, collectively, “Trade Controls”. Such Trade Controls may prohibit or restrict our ability to, directly or indirectly, conduct activities or dealings in or with certain countries or territories, as well as with governments, individuals or entities that are the subject of Trade Controls. Further, our sales and services to certain customers may at times trigger reporting requirements under applicable Trade Controls.
For instance, the U.S. government has imposed export control restrictions effectively barring sales of items (including components and software) that are subject to U.S. export controls to, among other parties, Huawei and certain other China-based technology companies with whom we conduct business. Although we maintain policies and procedures reasonably designed to maintain compliance with Trade Controls applicable to us (including those that target Huawei and certain of our other counterparties) we cannot ensure that such policies and procedures will be effective in preventing violations of applicable Trade Controls. Furthermore, any sanctions imposed on us as a result of dealings with Huawei or other organizations that are the target of U.S. export controls (or indirectly as a result of our customers, suppliers and other third-party contractors having such dealings) could have a material adverse effect on our business, prospects, financial condition and/or results of operations. These restrictions, and similar or more expansive restrictions that may be imposed by the United States or other jurisdictions in the future, may also materially impact and could have a material adverse effect on certain of our customers’ abilities to acquire technologies, systems, devices or components that may be critical to their technology infrastructure, service offerings and business operations, which could, in turn, have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Although we have implemented compliance measures designed to comply with applicable Trade Controls, our failure or the failure of our customers, suppliers and third-party contractors to successfully comply with applicable Trade Controls may expose us to negative legal and business consequences, including civil or criminal penalties, government investigations, and reputational harm, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations. See “— We rely on third-party contractors for various services, and any disruption in or non-performance of those services would hinder our ability to effectively maintain our tower infrastructure.”
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Our risk management policies and procedures may not be fully effective in achieving their purposes.
Our policies, procedures, controls and oversight to monitor and manage our enterprise risks may not be fully effective in achieving their purpose and may leave us exposed to identified or unidentified risks. Past or future misconduct by our employees or contractors could result in violations of law, regulatory sanctions and/or serious reputational harm or financial harm. We monitor our policies, procedures and controls; however, we cannot assure you that our policies, procedures and controls will be sufficient to prevent all forms of misconduct. We review our compensation policies and practices as part of our risk management program, but it is possible that our compensation policies could incentivize management and other employees to subject us to inappropriate risk or to engage in misconduct. If such inappropriate risks or misconduct occurs, it is possible that it could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We engage in transactions with certain related parties, and if their support and backing does not continue or a conflict of interest arises, our ability to deliver certain services could be harmed and our results of operations could be materially adversely affected.
MTN Group is one of our shareholders as well as a related party of certain MTN Group operating entities that are our customers in the African countries in which we currently operate. While such customers collectively accounted for 60% and 62% of our revenue for the years ended December 31, 2023 and 2022, respectively, our relationship with each MTN Group operating entity is managed separately through separate contracts for each MTN Group operating entity in each country. While we believe we currently have effective working relationships with the relevant entities in each operating country, there can be no assurance that conflicts of interest, inherent in related party transactions, may not arise, potentially resulting in disadvantages to us or the conclusion of transactions on less satisfactory terms, which could in turn affect our ability to deliver certain services and could have a material adverse effect on our business, prospects, financial condition, reputation and/or results of operations. See Item 7.B. “Related Party Transactions.”
A regional or global health pandemic or epidemic, and any governmental action taken in response, could severely affect our business.
A regional or global health pandemic or epidemic, depending upon its duration and severity, could have a material adverse effect on our business. For example, as a result of the COVID-19 pandemic that began in 2020, governmental authorities around the world implemented various measures to reduce the spread of COVID-19, and such measures adversely affected workforces, supply chains, ability to carry out operations, economies and financial markets and led to an economic downturn in many of our markets. As a result of the effects of any future regional or global health emergency or events that have a similar impact on the global economy such as, depreciation of local currencies and/or a lack of sufficient availability of hard/international currencies, we may experience fluctuations in foreign currency exchange rates in many of the markets in which we operate, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations. Global deterioration in economic conditions in light of global health emergencies or events could adversely and materially affect us and/or our customers through disruptions of, among other things, the ability to procure communications equipment or other supplies through the usual supply chains. For instance, shortages of capacity in shipping may occur and could affect the smooth flow of our and/or our customers’ supply chains, increase transportation costs and/or decrease reliability. Global deterioration in economic conditions in light of future outbreaks could also adversely and materially affect the ability of us and/or our customers to maintain liquidity and deploy network capital, with potential decreases in consumer spending contributing to liquidity risks, or even through regulatory interventions or pressure on pricing and services offered that may reduce revenue for periods of time. Any resulting financial difficulties could result in uncollectible accounts receivable or reduced revenue, despite having provided increased services. Resulting supply chain or operational difficulties (including site access) may also result in us being unable to meet the service level agreement targets under our MLAs. See “— We rely on third-party contractors for various services, and any disruption in or non-performance of those services would hinder our ability to effectively maintain our tower infrastructure.” The loss of significant Tenants, or the loss of all or a portion of our anticipated Contracted Revenue from certain Tenants, could have a material adverse effect on our business, financial condition and/or results of operations.
In the past, governments have taken, and may in the future take, unprecedented actions in an attempt to address and rectify these extreme market and economic conditions by providing liquidity and stability to financial markets. If these actions are not successful, the return of adverse economic conditions may cause a significant impact on our ability and the ability of our customers to raise capital, if needed, on a timely basis and on acceptable terms or at all.
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To the extent that any future pandemic or epidemic or related events could have a material adverse effect on our or our customers’ business, financial condition, results of operations and/or liquidity, it may also have the effect of heightening many of the other risks described in this “Risk Factors” section.
If we do not achieve black economic empowerment objectives in our South African businesses, we could jeopardize our ability to continue to do business or to secure future business in South Africa.
The South African government established a legislative framework for the promotion of Broad-Based Black Economic Empowerment (“B-BBEE”). Achievement of B-BBEE objectives is measured by a scorecard which establishes a weighting for the various components of B-BBEE which relate to ownership, enterprise and supplier development and socio-economic development. B-BBEE objectives are pursued, in significant part, by requiring parties who contract with corporate, governmental and state-owned enterprises in South Africa to achieve B-BBEE compliance through satisfaction of an applicable scorecard. Scorecards are independently reviewed by accredited verification agencies which issue a certificate that presents an entity’s B-BEE contributor level. This B-BBEE verification process is conducted on an annual basis. As part of the MTN SA Acquisition, we agreed to achieve and maintain certain B-BBEE contributor levels from the fiscal year 2023. We are also required, including by the Competition Commission of South Africa, to achieve 30% B-BBEE ownership by May 2024, as defined in the regulations governing the B-BBEE program, in our South African businesses. Failing to achieve or maintain the applicable B-BBEE requirements could jeopardize our ability to continue to do business or to secure future business in South Africa and/or lead to a termination of our contractual arrangements with MTN SA in circumstances where we would have failed to obtain the necessary extension or waiver from MTN SA and/or the Competition Commission, as applicable.
Risks Relating to the Markets in which We Operate.
Our current operations are conducted, and many of our customers are located, in various international markets, particularly in emerging markets such as in Africa, the Middle East and Latin America. Accordingly, our business, prospects, financial condition and/or results of operations depend significantly on the economic and political conditions prevailing in such markets, particularly Nigeria, which is our largest market of operation.
Our current and potential markets are subject to greater risks than more developed markets, and financial turmoil in such markets (including those in which we operate) could disrupt our business and cause the price of our ordinary shares to decline.
Investing in securities of issuers in emerging and less developed markets generally involves a higher degree of risk than investments in securities of corporate or sovereign issuers from more developed countries and carries risks that are not typically associated with investing in more mature markets. These risks include, but are not limited to, the types of risk noted in the Risk Factor entitled ““— Our current and future markets involve additional risks compared to more developed markets, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations”.
Investors should exercise particular care in evaluating the risks involved and must decide for themselves whether, in light of those risks, their investment is appropriate. Generally, investment in securities of issuers operating in emerging and less developed markets is only suitable for sophisticated investors who fully appreciate the significance of the risks involved and investors are urged to consult their own legal and financial advisors before making an investment in our ordinary shares. Investors should also note that emerging and less developed markets such as those in which we operate are subject to rapid change and that the information set forth in this Annual Report may become outdated relatively quickly.
Moreover, financial turmoil in any emerging market or less developed market or country tends to adversely affect prices in the financial markets of such markets, as investors move their money to more stable, developed markets. As has happened in the past, financial problems or an increase in the perceived risks associated with investing in other emerging economies could dampen foreign investment in the countries in which we operate and adversely affect the economies of such countries. In addition, during such times, companies that operate in emerging and less developed markets can face severe liquidity constraints as foreign funding sources, including availability of credit or debt financing, are withdrawn. Thus, even if the economies of the countries in which we operate remain relatively stable, financial turmoil in any emerging or less developed market or country could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
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Shortage of U.S. dollar, euro or other hard currency liquidity in the markets in which we operate may adversely affect our ability to service our foreign currency liabilities.
There may be shortages in the availability of, or disruptions or other limitations in the supply of, foreign currencies in the countries in which we operate, whether as a result of economic reasons, monetary controls or otherwise. See also “— Some of the markets in which we currently, or may in the future, operate are dependent on commodities, and are therefore impacted by global prices and/or demand for such products” and “— Financial authorities in the markets in which we operate may intervene in the currency markets by drawing on external reserves, and their currencies are subject to volatility.” For example, there have historically been periods of significant shortage of U.S. dollar liquidity in Nigeria and the CBN imposed additional currency controls that restricted access to U.S. dollars in the official foreign exchange market. The reduced access to foreign exchange negatively impacted certain sectors of the Nigerian economy. However, since the introduction of the I&E window in April 2017 (now referred to as NAFEM), the foreign exchange market generally experienced greater levels of stability; however, there have still been periods of significant U.S. dollar liquidity shortage from time to time, including since 2021, and the foreign exchange market has remained volatile. In Nigeria, we continue to access USD through various sources (including from commercial banks and authorized dealers) and at various rates (which may also be at a premium to NAFEM). In this regard, we may suffer adverse economic consequences as a result of a divergence between the rates at which U.S. dollars are available in the market or as a result of the lack of availability or the shortage of U.S. dollars as stated above.
Should such controls and foreign currency liquidity shortages continue and/or occur in the markets in which we operate, we may face difficulties accessing foreign currency from foreign exchange markets or experience increased costs in sourcing foreign currency or otherwise which would impact our ability to obtain foreign currency required for some of our operations or to service some of our foreign currency obligations, which in turn could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We may make acquisitions in or investments into emerging and other less developed markets, and investments in emerging and less developed markets are subject to greater risks than developed markets and could have a material adverse effect on our business, prospects, financial condition and results of operations.
To the extent that we acquire assets or invest in other emerging and/or less developed markets, including in Africa, the Middle East and Latin America, additional risks may be encountered that could adversely affect our business. Such markets tend to have less developed economies and infrastructure and are often more vulnerable to economic and geopolitical challenges and may experience significant fluctuations in gross domestic product, interest rates and currency exchange rates, as well as civil disturbances, government instability, nationalization and expropriation of private assets and the imposition of taxes or other charges by government authorities. In addition, the currencies in which investments are denominated may be unstable, may be subject to significant depreciation and may not be freely convertible or may be subject to the imposition of other monetary or fiscal controls and restrictions (including, for example, the Nigerian Naira which depreciated by approximately 49% in 2023 (see “Risks Relating to the Markets in which We Operate — We and our customers face foreign exchange risks, which may be material”). There have been periods of significant U.S. dollar liquidity shortage in Nigeria from time to time, including since 2021, thus limiting our ability to repatriate funds from the country. To the extent the availability of U.S. dollars does not improve, this may have a material adverse effect on our business, financial condition, results of operations, cash flows, liquidity and/or prospects.
Emerging and less developed markets are still in relatively early stages of their development and accordingly may not be highly or efficiently regulated, or the interpretation and enforcement of such regulations may be inconsistent or uncertain within the countries or jurisdictions in which we operate. Moreover, emerging and other less developed markets tend to be shallower and less liquid than more established markets which may adversely affect our ability to realize profits from our assets in these markets when we desire to do so or receive what we perceive to be their fair value in the event of a realization. In some cases, a market for realizing profits from an investment may not exist locally. In addition, companies based in emerging and other less developed markets are not generally subject to uniform accounting and financial reporting standards, practices and requirements comparable to those applicable to companies based in more developed countries, thereby potentially increasing the risk of fraud and other deceptive practices. Settlement of transactions may be subject to greater delay and administrative uncertainties than in developed markets and less complete and reliable financial and other information may be available to investors in emerging and other less developed markets than in developed markets. In addition, economic instability in such markets could adversely affect the value of our assets subject to leases in such countries, or the ability of our lessees or customers, which operate in these markets, to meet their contractual obligations. As a result, lessees or customers that operate in emerging and other less developed market countries may be more likely to default under their contractual obligations than those that operate in developed countries. Liquidity and volatility limitations in these markets may also adversely affect our ability to dispose of our assets at the best price available or in a timely manner.
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Should we continue to invest in or acquire assets located in emerging and less developed markets throughout the world, we may be exposed to any one or a combination of these risks, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Failure to adequately address the significant infrastructure deficiencies in emerging and less developed markets could adversely affect their economies and growth prospects, and companies operating in emerging and less developed markets may face logistical and operational difficulties.
Decades of under-investment have resulted in significant deterioration of public infrastructure and the absence of, or persistent problems with, basic infrastructure to support and sustain growth and economic development in many emerging and less developed markets, including some of those in which we operate, or may operate. In addition to power generation, transmission and distribution deficiencies, emerging and less developed markets may also suffer from deteriorating road networks, congested ports and obsolete rail infrastructure, which have all severely constrained socioeconomic development, including restricting the movement of people and goods within those regions, thereby increasing the time it takes to mobilize workforces and deliver supplies or equipment. The power sectors of emerging and less developed markets may suffer from numerous problems, such as limited access to infrastructure, low connection rates, inadequate power generation capacity, lack of capital for investment, insufficient transmission and distribution facilities, high transmission and distribution losses and vandalism. Many businesses rely on alternative electricity and water supplies, adding to overall business costs. See “— Some of the markets in which we currently, or may in the future, operate may suffer from chronic electricity shortages.”
Although significant advances have been made in the areas of communications facilities in recent years, the progress of development in these sectors cannot be considered at par with that in more developed economies. For example, Nigeria’s new administration sworn in on May 29, 2023, has set ambitious targets for infrastructure and economic development as part of the continuous process of accelerating development in the country. Some of the most notable reforms associated with those targets include (i) replacing the old regime of multiple foreign exchange rate segments into a single NAFEM window within which foreign exchange transactions would be determined by market forces (see “ – We and our customers face foreign exchange risks, which may be material”), (ii) removing the petrol motor spirit subsidy that consumed approximately $10 billion of the federal budget in 2022, as reported by Reuters, and (iii) enacting the Nigeria Infrastructure Fund, or the NIF, aimed at funding upgrades in transportation, roads, power as well as other infrastructure projects.
Failure to significantly improve the infrastructure in such markets could adversely affect their economies and growth prospects, including their ability to meet GDP growth targets which, in turn, could have a material adverse effect on our business, prospects, financial condition and/or results of operations. The lack of reliable infrastructure also limits our ability, and that of our commercial partners, contractors, customers and suppliers, to respond quickly to unforeseen situations, which can lead to delays and production stoppages. We may also face operational and logistical challenges as a result of outbreaks of infectious diseases in the regions in which we operate. The occurrence of any of the above could have a material adverse effect on our business, prospects, financial condition and/or results of operations. Furthermore, certain areas/regions in which we operate periodically experience adverse weather conditions and natural disasters, mainly in the form of high winds, floods, erosion, and drought, which further limit the use of available infrastructure, particularly during the rainy season in such regions, when the likelihood of delays increases. See “— We are subject to the effects of climate change.” In addition, flooding in the regions in which we operate has also led to outbreaks of disease, which, coupled with the ongoing security concerns in these regions (see “— There are risks related to political instability, religious differences, ethnicity and regionalism in emerging and less developed markets”), may affect our ability to staff our operations with qualified local and overseas individuals should such individuals be deterred from relocating to these regions, as a result of health or security concerns.
Some of the markets in which we currently, or may in the future, operate may suffer from chronic electricity shortages.
Successfully managing communications towers in many of the types of markets in which we currently, or may in the future, operate (including emerging markets) is dependent on operational competency in power management, and unreliability of grid power presents significant challenges to managing our sites, uptimes and delivering quality service to customers.
For example, despite the abundant energy resources in Nigeria, significant government reform efforts, and investments in the power sector in recent years, lack of sufficient and reliable electricity supply remains a serious impediment to the country’s economic growth and development. Insufficient power generation, aging infrastructure, weak distribution networks, overloaded transformers, and acts of sabotage to pipelines and infrastructure by vandals result in frequent power outages, high transmission and distribution losses and poor voltage output. Only 59.5% of Nigeria’s total population has access to the grid electricity supply (according to World Bank data from 2021) due to insufficient generation capacity and inadequate transmission and distribution networks.
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In addition, Zambia experienced power outages that adversely impacted its economic growth between 2014 and 2016, in 2019, 2020, 2022 and 2023.
Similarly, in South Africa the national electricity grid has been under significant pressure over the last decade to meet growing demand given insufficient generation capacity due to underinvestment in new generation and maintenance of facilities. This has resulted in periodic periods of load shedding, where planned supply interruptions take place and are rotated across South Africa to reduce pressure on the electricity grid. New initiatives have been implemented by the government, including allowing the private sector to build their own power plants with up to 100 megawatts of generating capacity without requiring a license, in a bid to address the nation's failing electricity supply. Load shedding has also increasingly been experienced in some of our other markets, such as Zambia and Côte d’Ivoire. Despite initiatives by governments to resolve or mitigate such issues and/or ongoing investment from governments into power generation and transmission, load shedding is expected to continue to occur in the future (including, potentially, in additional markets in which we may operate), and which in turn, may have a material adverse effect on our business, financial condition, results of operations, cash flows, liquidity and/or prospects.
Despite the introduction of power sector reforms and recent incremental improvements in the sector in certain markets, failure to sustain and improve on these efforts in power generation, transmission and distribution infrastructure could lead to lower GDP growth and hamper the development of economies, as well as increase the underlying costs of operating in such markets, many of which may not be recoverable. Such challenges in grid connectivity and/or the consistent provision of power may also be caused by events outside the control of relevant authorities and/or providers, including as a result of the impact of climate-related events on power sources and/or distribution networks or infrastructure. Slow growth in the economies in which we operate may also lessen consumers’ propensity to spend, which would negatively affect our customers. This, in turn, may have a material adverse effect on our business, financial condition, results of operations, cash flows, liquidity and/or prospects.
Unlike communication towers businesses in developed markets such as the United States and the European Union, where the electricity grid is comparatively extremely reliable, successfully managing communications towers in many of the types of markets in which we currently, or may in the future, operate is dependent on operational competency in power management. Given the intermittent and unreliable grid availability in Nigeria, for example, grid electricity has been rarely used as a source of power for our Towers, with 18% of Towers operated only with generators and 63% operated with hybrid solutions, which alternate between diesel generators and / or solar or battery systems, as of December 31, 2023. In our other African markets grid availability can also be unreliable and, as of December 31, 2023,13% of Towers (excluding South Africa) were powered only by the grid, with the remainder having either generator or hybrid power systems. The unreliability of the grid power presents significant challenges to managing our tower sites and power uptimes and delivering quality service to customers. Any inability to continue to deliver quality service could harm our relationships with our customers, which, in turn, could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Some of the markets in which we currently, or may in the future, operate are dependent on commodities, and are therefore impacted by global prices and/or demand for such products.
The economies of some of the markets in which we operate may be highly dependent on commodities, such as oil or copper, and therefore on global prices and demand which impact these markets. Reductions in revenue from such commodities could adversely affect the economies of the markets in which we operate. For example, the Nigerian economy is highly dependent on oil production in Nigeria and global prices of oil. According to the Nigerian National Bureau of Statistics, in 2023, the oil sector represented 5.4% of total real GDP, a decrease from the 5.7% and 7.2% recorded in 2022 and 2021, respectively. Reductions in revenue from commodities (including but not limited to oil), particularly in light of measures related to global health events or outbreaks (such as COVID-19), or geopolitical tensions (such as outbreaks of violence or wars), could have a material adverse effect on the economies of certain markets in which we operate and in turn on our and our customers’ business and our results of operations. Additionally, between 2014 and 2016, a fall in copper prices adversely affected Zambia’s economy, along with increased tensions with mining companies due to related tax increases.
Revenue from commodities is a function of the level of the relevant commodity’s production in the relevant country and prevailing world commodity prices and demand. Commodity prices are subject to wide fluctuations in response to relatively minor changes in the supply of, and demand for, such commodity, market uncertainty, and a variety of additional factors that are beyond the control of the relevant country.
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These factors include, but are not limited to, political conditions in other relevant regions, internal and political decisions of any regional or international bodies or organizations relating to such commodities, such as OPEC, and other nations producing the relevant commodity as to whether to decrease or increase production, domestic and foreign supplies of the commodity, consumer demand, such as the fall in demand resulting from the global response measures to contain the spread of COVID-19 (or any future coronavirus or other outbreaks or events with a wide-ranging regional or global impact), weather conditions, domestic and foreign government regulations, transport costs, the price and availability of alternatives and overall economic conditions.
Declines in commodity prices and/or revenue on which certain of the economies in which we operate rely have had and will continue to have an impact on such economies, and may result in lower economic growth, high rates of unemployment, reduction in foreign exchange and government revenue. For example, the Nigerian government and certain other governments, such as in oil-producing countries in the Middle East, rely heavily on oil revenue to fund their budgets, and the decline in prices immediately following the onset of the COVID-19 pandemic in March 2020 resulted in significantly decreased revenue. Oil prices have also been volatile following the geopolitical conflicts that took place in Europe from 2022 and in the Middle East from 2023, causing revenue instability in oil-reliant countries like those we operate in. Moreover, Nigeria, which has historically been one of the largest oil producers in Africa, produced an average of 2.0 million barrels per day in 2019; however, production levels have since declined to an average 1.37 million barrels per day in 2022, albeit slightly increased in 2023 to an average 1.43 million barrels per day as reported by the Nigerian Bureau of Statistics. The decline can be attributed to, among other things, leakage, militant attacks and decaying infrastructure. A reduction or fluctuation in commodity prices, such as a drop in oil prices, would likely negatively impact export earnings in the relevant country, government revenue, and national disposable income, and lead to budgetary constraints and reduced investment in key projects such as infrastructure. Further, any foreign exchange controls imposed in the jurisdictions in which we operate, whether as a result of reduced foreign exchange revenue from such commodities or related products or otherwise, may lead to a devaluation of our revenue which is received in local currencies and also affect our ability to obtain foreign currency required for some of our operations or to service some of our foreign currency obligations. See “— Financial authorities in the markets in which we operate may intervene in the currency markets by drawing on external reserves, and their currencies are subject to volatility” and “— Shortage of U.S. dollar, euro or other hard currency liquidity in the markets in which we operate may adversely affect our ability to service our foreign currency liabilities.”
Commodity production in the relevant economies may also fluctuate significantly as a result of a decline in global prices, which may affect the economic viability of certain producing assets, and the activities of vandals (such as in the Niger Delta region of Nigeria, in relation to the oil industry) may lead to significant disruptions in the production of commodities on which such economies or businesses there rely upon. For example, the level of oil production and oil revenue in Nigeria and certain other oil producing countries in the Middle East may also be adversely affected by other factors, including changes in oil production quotas by OPEC, the response of international oil companies to changes in the regulatory framework for oil production in the relevant country or region, and theft of crude oil from pipelines and tank farms. Any long-term shift away from certain commodities (such as fossil fuels), including from developed economies seeking to develop alternative sources of energy, could adversely affect commodity prices and demand and the resulting commodity-related revenue of economies in which we operate. Damage to such economies as a result of such downturns may harm our customers and increase costs (such as fuel costs), which may have a material adverse effect on our business, prospects, financial condition and/or results of operations.
High inflation could have a material adverse effect on the economies in which we operate.
Inflation around the world has risen to levels not experienced in recent decades, and the markets in which we operate are exposed to the risk of high inflation. For example, for the years ended December 31, 2023 and 2022, Nigeria’s inflation rate stood at 24.7% and 18.9%, respectively, according to the Nigeria Bureau of Statistics. For the years ended December 31, 2023 and 2022, South Africa's inflation rate was 6.0% and 6.9%, respectively. For the years ended December 31 2023 and 2022, Zambia’s inflation rate was 10.9% and 11.1%, respectively. Changes in monetary and/or fiscal policy in the countries in which we operate may result in higher rates of inflation, which could consequently increase our operating costs. There can be no assurance that inflation rates will not rise in the future. While we have contractual inflation-linked escalation provisions under most of our MLAs, there can be no guarantee that the rates of escalation of lease fees will mitigate future inflation, particularly where our MLAs may include fixed, capped or floored escalators.
Brazil could also experience new cycles of high rates of inflation. For the years ended December 31, 2023, and 2022, Brazil’s inflation rate was 4.6% and 9.3%, respectively. Even though inflation has receded and macroeconomic conditions improved following the smooth governmental transition of power in January 2023, moderate appreciation of the Brazilian real against the U.S. dollar, and a meaningful cut in rates by the central bank, the Brazilian government has historically taken significant actions to control inflation. Past inflation control policies and regulations often involved, among other measures, increases or decreases in interest rates, changes in fiscal policies, wage and price controls, foreign exchange rate controls, blocking access to bank accounts, currency devaluations, capital controls and import and export restrictions.
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Inflation policies adopted to curb inflationary pressures and uncertainties regarding possible future governmental intervention could contribute to economic uncertainty and heightened volatility in the Brazilian economy.
Significant inflation and measures taken by governments to control inflation (such as the significant interest rises recently seen) could have a material adverse effect on the economies of the countries in which we operate and, as a result, on our business, prospects, financial condition and/or results of operations.
Financial authorities in the markets in which we operate may intervene in the currency markets by drawing on external reserves, and their currencies are subject to volatility.
Central banking authorities in the countries in which we operate may intervene in the currency markets by drawing on external reserves (such as, most recently, in Nigeria, where a significant portion of our operations are based) or adopting policies that may impact the applicable exchange rates and/or amounts of foreign currency that may be obtained. Fluctuations in an economy’s external reserves, its high dependence on certain foreign-currency revenue streams (such as those related to commodities such as oil, or other exports) and high levels of key imports in foreign currency, could result in local currencies remaining or becoming vulnerable to external shocks.
For example, the CBN had historically favored maintaining the Naira within a narrow band with periodic adjustments. Following the devaluation in June 2023, the CBN has made statements that the exchange rate should be governed by a “willing buyer – willing seller” market approach. The gross external reserves have fluctuated in recent years, dropping significantly from a high of $44.2 billion at the end of 2012, to a low of $25.8 billion at the end of 2016, before gradually recovering. As of December 31, 2023, gross external reserves were recorded at $32.9 billion. Given the fluctuations in Nigeria’s external reserves, its high dependence on oil exports and the fact that Nigeria pays for its key imports, such as refined oil, in U.S. dollars, the Naira will remain vulnerable to external shocks that could lead to a sharp decline in its values, as had occurred historically.
In addition, the currencies of the countries in which we operate are subject to volatility. The functional currency of our operating subsidiaries are the Nigerian Naira (₦), West African CFA Franc (XOF), Central African CFA Franc (XAF), Zambian Kwacha (ZMW), Rwandan Franc (RWF), the South African Rand (ZAR), Brazilian Real (BRL), Colombian Peso (COP), Peruvian Sol (PEN) and Kuwaiti Dinar (KD). The operating subsidiaries’ financial results are translated into U.S. dollars for reporting purposes. Accordingly, we are subject to fluctuations in the rates of currency exchange. In particular, the Naira has depreciated significantly against the U.S. dollar, due to declining oil prices, depletion of external reserves, and the absence of fiscal buffers. In early 2015, the CBN instituted certain currency control policies and pegged the Naira at ₦197 to the U.S. dollar, which increased to approximately ₦305 in 2016, approximately ₦435 as of December 31, 2021, approximately ₦461.50 as of December 31, 2022 and approximately ₦911.7 as of December 31, 2023. Similarly, the Zambian Kwacha to U.S. dollar exchange rate increased from ZMW9.99 as of December 31, 2017 to ZMW25.73 as of December 31, 2023 and the Brazilian Real to U.S. dollar exchange rate increased from BRL4.03 as of December 31, 2019 to BRL4.85 as of December 31, 2023. The South African Rand to U.S. dollar exchange rate increased from ZAR16.98 as of December 31, 2022 to ZAR18.36 as of December 31, 2023.
Central banks or monetary authorities in economies where the local currency is subject to such pressures may take various administrative measures aimed at stabilizing the foreign exchange market, including restricting access to the official foreign exchange market or prohibiting the use of foreign currencies in domestic transactions or by other means.
The depreciation or volatility of local currencies of the countries in which we operate may negatively affect their respective economies, which in turn could have a material adverse effect on our and our customers’ business, prospects, financial condition and/or results of operations as well as our liquidity and cash flows. See “Risks Relating to Our Business — We and our customers face foreign exchange risks, which may be material.”
Failure to adequately address actual and perceived risks of corruption may adversely affect the economies of the countries in which we operate, or may operate, and their ability to attract foreign investment.
Corruption is a significant issue in many of the markets in which we operate, as in many other emerging and less developed markets. For example, Nigeria, Cameroon and Zambia placed 145, 140 and 98, respectively, out of 180 countries in Transparency International’s 2023 Corruption Perceptions Index. Despite certain reform efforts, however, corruption continues to be a serious problem impacting some of the countries in which we operate, as reflected by several high-profile convictions. Brazil has also experienced recent political instability, including various investigations into allegations of money laundering and corruption being conducted by the Office of the Brazilian Federal Prosecutor, which have negatively impacted the Brazilian economy and political environment. In addition, South Africa and Nigeria (since February 2023) and Cameroon (since June 2023) were added by the Financial Action Task Force’s (“FATF”) to the “grey list” of countries that need to do more to improve their ability to fight financial crime.
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The addition to the “grey list” will likely increase the cost of doing business in South Africa and Nigeria, as there is additional scrutiny on transactions by international counterparties in grey list countries.
Corruption has many implications for a country, including difficulty in collecting revenue and controlling expenditure, increasing the risk of political instability, distorting decision-making processes and adversely affecting its international reputation. Failure to address these issues, continued corruption in the public sector and any future allegations of, or perceived risk of, corruption in the markets in which we operate could have adverse effects on their respective economies and may have a negative effect on the ability of these countries to attract foreign investment and, as a result, may have a material adverse effect on our and our customers’ business, prospects, financial condition and/or results of operations.
The policies and reforms of the political administrations in the countries in which we operate may result in political instability or changes in regulatory or other government policies.
Many emerging and less developed markets, including those in which we operate or may operate, face periods of political and economic uncertainty, particularly around the times leading up to elections and/or other political change, including uncertainty as to the manner in which the relevant governing authorities would seek to address the issues facing the relevant country and whether they would alter or reverse certain reforms and actions taken by predecessors or even by incumbents seeking to garner increased favor. Such issues may give rise to uncertainty in the investing community and are likely to reduce inbound investment.
Frequent and intense periods of political instability make it difficult to predict future trends in governmental policies. For example, the Arab Spring of 2010 and 2011 caused substantial political turmoil across the Middle East and North Africa, particularly in Egypt. During this period of instability in Egypt, the government temporarily dissolved the parliament, suspended the constitution and shut down the internet. Any similar shut-down in the countries in which we operate in the future will negatively affect our business and results of operations. In addition, if government or regulatory policies in a market in which we operate were to change or become less business-friendly, our business could be materially adversely affected. In addition, the economic instability experienced in Brazil between 2020 and 2022 contributed to a decline in market confidence in the Brazilian economy as well as to a deteriorating political environment. Despite a reduction in inflation in 2023, following a smooth governmental transition that year, the Brazilian government has in the past intervened in the Brazilian economy and occasionally makes significant changes in policy and regulations. For instance, the Brazilian government’s actions to control inflation and implement macroeconomic policies have often involved increases in interest rates, wage and price controls, currency devaluations, blocking access to bank accounts, imposing capital controls and limits on imports, among other things. In addition, various ongoing investigations into allegations of money laundering and corruption being conducted by the Office of the Brazilian Federal Prosecutor, have negatively impacted the Brazilian economy and political environment and have adversely impacted the image and reputation of those companies that have been implicated. We do not have any control over, and are unable to predict, which measures or policies the Brazilian government may adopt in the future. In addition, in South Africa, presidential elections are expected to take place in 2024, the outcome of which could adversely affect the economy, hinder or delay progress in minimizing the energy crisis, and ultimately impact our growth and operations in the country.
Moreover, some planned reforms may disadvantage certain existing stakeholders, who may seek to curtail such reforms. For example, planned privatization of state-owned enterprises has in some cases been met with strikes or threats of strikes in anticipation of job losses and price increases. Any significant changes in the political climate in the countries in which we operate, including changes affecting the stability of the government or involving a rejection, reversal or significant modification of policies against nationalization or expropriation of privately owned assets, favoring the privatization of state-owned enterprises, reforms in the telecommunications, power, banking and oil and gas sectors or other reforms, may have negative effects on the economy, government revenue or foreign reserves and, as a result, could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
There are risks related to political instability, religious differences, ethnicity and regionalism in emerging and less developed markets.
Our operations are exposed to the political and social environment of the emerging and less developed markets in which we operate (or may in the future operate), which have the potential for civil and political unrest, contributing to an uncertain operating environment. For example, in Nigeria, corruption, policy uncertainty and collapsing infrastructure, as well as terrorist acts by Boko Haram and other groups, together with increased insecurity in different parts of the country, present significant risks to business operations in parts of Nigeria. Terrorism and militant activity are a problem in parts of Nigeria, where a range of terrorist and militant groups with differing goals operate.
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The Boko Haram sect, a terrorist group based primarily in north-eastern Nigeria, initially became active in 2009 and increasingly received international attention for the number and frequency of attacks against the Nigerian people and villages. These attacks led to the deployment of troops to Adamawa, Borno, and Yobe states. Despite progress made in combatting the group, Boko Haram continued to mount attacks throughout 2021 and 2022, particularly in the Lake Chad region. In addition to the instability caused by Boko Haram, the Niger Delta region of Nigeria continues to experience militant activity, creating a challenging environment for companies operating in that region. Cameroon has also recently faced similar issues, including with political instability in the Anglophone regions of Cameroon and Boko Haram in the Far North region of the country. Such instability has in the past resulted in, and may continue to result in, vandalism of our sites, obstruction or inability to access our Towers and increased security threats to our sites, as well as corresponding lost revenue or increased maintenance and security costs, as well as increased capital expenditures.
Political and social unrest in countries neighboring the markets in which we operate may also pose risks to our business. Instances of terrorist activities or other political and/or social unrest as well as general lawlessness can create a challenging environment for companies operating in the relevant regions. While such activity may be targeted within certain regions or at certain types of industry (such as oil and gas companies), the security situation in such regions can be volatile and may also have an impact on our operations, such as attacks on sites by militant or other groups in order to disrupt communications, and can generally create instability, impacting the relevant regions and economies.
Unless resolved by the government, such conflicts may adversely affect the political and economic stability of the markets in which we operate (or may in the future operate), which may, in turn, further have a material adverse effect on our business, prospects, financial condition and/or results of operations.
The taxation, customs and regulatory systems in emerging and less developed markets may be subject to changes and inconsistencies.
The government policies and regulations of emerging and less developed market economies, such as those in which we operate or may operate, on taxation, customs and excise duties and other regulatory matters may change from time to time. In addition, taxes, customs and excise duties and other fees and fines may increasingly be viewed as major sources of revenue, particularly where other previously prominent sources of revenue (such as those derived from commodities) may have reduced. This may result in the introduction of new taxes, levies or fees where none previously existed (or were not imposed). For various reasons, including a potential need to generate revenue from sources other than exports, other foreign governments may take measures to enforce tax compliance, including taking interim measures for alleged tax default, or to impose fees with respect to our operations, even where not permitted by applicable law. While such measures are often successfully challenged, if they are taken in relation to us, this may have a material adverse effect on our financial condition, results of operations, cash flows, and/or liquidity. Further, the interpretation by the relevant tax or other regulatory authorities of, or decision with respect to, certain sections of tax or other laws may differ on a case-by-case basis, including potentially, against sectors or companies such as ours in the event of a perceived increase in profile or growth. Changes in government policies on taxation, customs and excise duties or other regulations, as well as inconsistencies or uncertainties in the interpretation of and decisions relating to tax laws, may have a material adverse effect on our cash flows and liquidity, as well as our business, prospects, financial condition and/or results of operations, and on the tax liability of holders of our ordinary shares.
Inefficiencies and corruption in the judicial systems may create an uncertain environment for investment and business activity and affect the ability of investors to find remedies through the relevant jurisdictions’ judicial systems.
The legal systems in certain emerging and less developed markets, such as the ones in which we operate and may in the future operate, are still in their growing phase, and the laws and regulations in such jurisdictions continue to undergo development and face a number of challenges, including corruption and delays in the judicial process since most cases take a considerable period of time to be concluded. Similarly, the enforcement of judgments and/or security in such jurisdictions may be affected by inefficiencies in the judicial system and can result in uncertain positions.
As a result, effective legal redress may be difficult to obtain and there is a high degree of uncertainty due to the discretion of governmental authorities, lack of judicial or administrative guidance on interpreting applicable rules and regulations, inconsistencies or conflicts between and within various laws, regulations, decrees, orders and resolutions and relative inexperience of the judiciary and courts in commercial matters. Slow and uncertain judicial process may sometimes affect the enforceability of judgments obtained, or result in judgments or extra-judicial action that may be inconsistent with the expected or applicable legal process, rules or procedures.
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Those and other factors that have an impact on the legal systems of the markets in which we operate make an investment in our ordinary shares subject to greater risks and uncertainties than an investment in a country with a more mature legal system.
Risks Relating to our Indebtedness
Our level of indebtedness and the terms of our indebtedness could materially adversely affect our business and liquidity position.
As of December 31, 2023, we had $3,511 million of total borrowings, excluding lease liabilities. We currently use debt financing and plan to continue to use debt financing for our future operations and projects. The terms of the agreements governing our indebtedness limit the circumstances in which we may incur additional indebtedness. However, our indebtedness may increase from time to time in the future for various reasons, including fluctuations in operating results, capital expenditures and potential acquisitions or joint ventures or other investments. As a result, the risks normally associated with debt financing may materially adversely affect our cash flows and liquidity as well as our business, prospects, financial position and/or operating results including because:
| ● | our level of indebtedness may, together with the financial and other restrictive covenants in the agreements governing our indebtedness, significantly limit or impair our ability in the future to obtain financing, refinance any of our indebtedness, sell assets or raise capital on commercially reasonable terms or at all, which could cause us to default on our obligations and materially impair our liquidity; |
| ● | a downgrade in our credit rating (including because of a downgrade in the sovereign credit ratings for the countries in which we have material operations) could restrict or impede our ability to access the capital markets at attractive rates and increase our borrowing costs; |
| ● | our level of indebtedness may increase the difficulty for us to repay our debt, including our ability to pay interest when due and/or the principal amounts due under such indebtedness; |
| ● | our level of indebtedness may reduce our flexibility to respond to changing business and economic conditions or to take advantage of business opportunities that may arise; |
| ● | a portion of our cash flow from operations must be dedicated to interest payments on our indebtedness and is not available for other purposes, which amount would increase if prevailing interest rates rise; |
| ● | our level of indebtedness may place us at a competitive disadvantage relative to competitors that have lower leverage or greater financial resources than we have and restrict us from pursuing our strategy (including acquisitions) or exploiting certain business opportunities; and |
| ● | our level of indebtedness could make us more vulnerable to downturns in general economic or industry conditions or in our business. |
In addition, market conditions and monetary restrictions may lead to foreign currency liquidity shortages and we may face difficulties in obtaining sufficient quantities of the relevant foreign currency when required to meet our contractual and indebtedness obligations denominated in U.S. dollars or other foreign currencies. See “— Risks Relating to the Markets in which We Operate — Financial authorities in the markets in which we operate may intervene in the currency markets, and their currencies are subject to volatility” and “— Risks Relating to the Markets in which We Operate — Shortage of U.S. dollar, euro or other hard currency liquidity in the markets in which we operate may adversely affect our ability to service our foreign currency liabilities.” Such shortages or lack of availability could increase our borrowing costs and interest expenses, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations as well as cash flows and liquidity. Such issues or increases could also have a material adverse effect on our cash flows and our ability to service our debt or meet interest payments in the longer term. Shortages in the availability of foreign currency may restrict our ability to satisfy our foreign currency-denominated obligations. Although we may seek to enter into agreements to reduce our risk related to access to foreign currencies and applicable exchange rates, we are under no obligation to do so and we cannot assure you that such arrangements would ensure our access to foreign currencies which we need on commercially acceptable terms or at all, or that we will be able to enter into such arrangements on commercially acceptable terms or at all. Similarly, certain jurisdictions may also experience liquidity shortages or reductions in the capital available to lend in the market (including, but not limited to, as a result of increased regulatory requirements by central banks), which may prevent us from refinancing indebtedness denominated in such local currency on acceptable terms or at all. See Item 5.B. “Liquidity and Capital Resources.”
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We are a holding company and conduct limited operations of our own. Repayment of indebtedness, including under the IHS Holding RCF, the IHS Holding 2022 Term Loan and the Notes, is dependent on the ability of our operating companies to make cash available to us. See “— IHS Holding Limited is a holding company with no operations of its own and, as such, it depends on its subsidiaries for cash to fund its operations and expenses, including future dividend payments, if any.”
In addition, our ability to draw funds from our existing and future local facilities or to refinance our existing local facilities may be materially adversely affected by the relatively high or increasing levels of non-performing loans in the relevant local banking sector. Local banks with a lack of geographic diversification or that have substantial exposure to certain industries which are not performing as well, may see the overall quality of their loan portfolio deteriorate or their provisioning costs increase, which may also impact their net interest income and margins. Any regional or local economic downturn that affects the local banking sector may in turn impact our ability to draw funds from any current and future undrawn local facilities or to refinance existing local facilities and could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
Prevailing interest rates or other factors at the time of refinancing, including the possible reluctance of creditors to make commercial loans or to invest in operations in developing markets (including as a result of market or economic conditions or considerations relating to regulatory capital requirements), could result in the withdrawal of certain creditors from the pool of available lenders traditionally available to borrowers or issuers of our profile, and could also result in higher interest rates, and the increased interest expense could, in the longer term, have a materially adverse effect on our ability to service our debt and to complete our capital expenditure plans, and our financial condition and results of operations could deteriorate as a result.
We are subject to restrictive debt covenants and our failure to comply with these covenants, including as a result of events beyond our control, could result in an event of default that could have a material adverse effect on our financial condition and/or results of operations.
We are party to credit agreements that govern the IHS Holding RCF and the IHS Holding 2022 Term Loan, indentures that govern the Notes and credit agreements governing our facilities at our operating subsidiaries, and may provide guarantees under credit agreements governing our facilities at our operating subsidiaries, and therefore are subject to the restrictive covenants under those agreements. A breach of any covenants, ratios, tests or restrictions in those instruments and agreements, including as a result of events beyond our control, could result in an event of default (which may also trigger cross-default or cross-acceleration clauses in other agreements or financings) that could have a material adverse effect on our financial condition and/or results of operations. The instruments governing our indebtedness contain a number of restrictive covenants, including restrictions on our ability to, among other things:
| ● | incur or guarantee additional debt or issue preferred stock; |
| ● | pay dividends on, redeem or repurchase share capital, or make other distributions; |
| ● | purchase equity interests or reimburse or prepay subordinated debt prior to maturity; |
| ● | create or incur liens; |
| ● | make certain investments; |
| ● | agree to limitations on the ability of our subsidiaries to make distributions; |
| ● | engage in sales of assets and subsidiary stock; |
| ● | enter into transactions with affiliates; |
| ● | guarantee other debt; and |
| ● | transfer all or substantially all of our assets or enter into merger or consolidation transactions. |
The restrictions contained in our debt instruments could affect our ability to operate our business and may limit our ability to react to market conditions or take advantage of potential business opportunities as they arise. For example, these restrictions could have a material adverse effect on our ability to finance our operations, make strategic acquisitions, investments or alliances, restructure our organization, or finance our capital needs. Additionally, our ability to comply with these covenants and restrictions may be affected by events beyond our control.
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Should market conditions deteriorate or fail to improve, or our operating results decrease in the future, then we may have to request amendments and/or waivers to the covenants and restrictions to which we are subject. There can be no assurance that we will be able to obtain such relief should it be needed in the future. A breach of any of these covenants or restrictions could result in a default and acceleration that would permit our creditors to declare all amounts incurred to be due and payable, together with accrued and unpaid interest, and the commitments of the relevant creditors to make further extensions of credit could be terminated. Such actions may also trigger cross-default or cross-acceleration provisions in other facilities or agreements, which could multiply and extend the impact of any particular event or series of events across our Group.
If we breach certain of our debt covenants, creditors could declare a default and/or require us to pay the then outstanding debt immediately, and, in the case of any secured debt, creditors could sell the property securing such debt if we are unable to pay the outstanding debt immediately. If an event of default is called or if we default on the payments required by our existing indebtedness, we could trigger cross-default or cross-acceleration provisions under other debt agreements or instruments that could make such indebtedness payable on demand, and we may not have sufficient funds to repay all of our debts. The breach of covenants and the exercise by the relevant creditors of their rights under the various financing agreements could have a material adverse effect on our business, prospects, financial condition and/or results of operations.
We are exposed to interest rate risks as certain of our borrowings bear interest at floating rates that could rise significantly, increasing our interest cost and reducing cash flow.
Outstanding balances and advances under certain of our existing credit facilities bear interest at rates which vary depending on certain underlying or reference rates, such as the Secured Overnight Financing Rate, or SOFR, the Chicago Mercantile Exchange (CME) Term SOFR, the European interbank offered rate, or EURIBOR, the Nigerian Monetary Policy Rate, or MPR, the Central Bank of Kuwait’s Discount Rate, the Johannesburg Interbank Average Rate, or JIBAR, or the Brazilian interbank deposit rate, or CDI. Increases in such reference rates increase our interest expense, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations. Such increases in interest rates could also have a material adverse effect on our cash flows and our ability to service our debt in the longer term. In addition, we may procure additional indebtedness at floating rates in the future.
Currencies and tenors of LIBOR were discontinued on June 30, 2023. In anticipation of the discontinuation of the publication of LIBOR in 2023, we actively transitioned to using alternative interest rate benchmarks of SOFR and CME Term SOFR, as an alternative to US Dollar LIBOR in our debt facilities that bear interest at variable interest rates.
Whilst we have already transitioned away from LIBOR and other interest rate benchmarks to alternative reference rates, the effects of such transition entails uncertainty and may involve, among other things, changes in the accounting and regulatory treatment of reference interest rates, increased volatility and may result in increased borrowing costs. As such, the effect of LIBOR discontinuation on our cost of capital, financial results, cash flows and/or results of operations remains uncertain.
The applicable interest rates (including alternative interest rates) could rise significantly in the future, thereby increasing our interest expenses associated with these obligations, reducing cash flow available for capital expenditures and hindering our ability to make payments on our indebtedness. Although we may hedge the interest rates with respect to certain of our existing credit facilities, we are under no obligation to do so under the documents governing our indebtedness, and we may not be able to obtain such hedges, or replace such hedges on terms that are acceptable to us, and any such hedges may not be fully effective, which would expose us to interest rate risk.
We may not be able to generate sufficient cash to service all of our indebtedness and may be forced to take other actions to satisfy our obligations under our indebtedness, which may not be successful.
Our ability to make scheduled payments on or to refinance our debt obligations and to fund planned capital expenditures and working capital requirements depends on our future performance and ability to generate cash, which is subject, among other things, to the success of our business strategy, prevailing economic conditions and financial, competitive, legislative, legal, regulatory and other factors, including those other factors discussed in these “Risk Factors,” many of which are beyond our control.
We can make no assurances that we will be able to generate a level of cash flow from operating activities sufficient to permit us to pay the principal, premium, if any, and interest on our indebtedness or that future borrowings will be available to us in an amount sufficient to enable us to service our other indebtedness or to fund our other liquidity needs. If we default on the payments required by any indebtedness, that indebtedness, together with debt incurred pursuant to debt agreements or instruments that contain cross-default or cross-acceleration provisions may become payable on demand, and we may not have sufficient funds to repay all of our debts.
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Furthermore, if our cash flows and capital resources are insufficient to service our debt obligations, we may be forced to reduce or delay investments and capital expenditures or to sell assets, seek additional capital or restructure or refinance our indebtedness, any of which will depend on our cash needs, our financial condition at such time, the then prevailing market conditions and the terms of our then existing debt instruments, which may restrict us from adopting some of these alternatives. Any failure to make payments of interest and principal on our outstanding indebtedness on a timely basis would likely result in a reduction of our credit rating, which could also harm our ability to incur additional indebtedness. In addition, any refinancing of our debt could be at higher interest rates and may require us to comply with more onerous covenants, which could further restrict our business operations, and there can be no assurances that any assets which we could be required to dispose of could be sold or that, if sold, the timing of the sales and the amount of proceeds realized from those sales could be on acceptable terms.
In addition, we maintain the majority of our cash and cash equivalents in accounts with major financial institutions, and our deposits at these institutions may exceed insured limits. Market conditions can impact the viability of these institutions. In the event of failure of any of the financial institutions where we maintain our cash and cash equivalents, there can be no assurance that we would be able to access uninsured funds in a timely manner or at all. Any inability to access or delay in accessing these funds could adversely affect our business and financial position.
Risks Relating to Ownership of our Ordinary Shares
We are a foreign private issuer and, as a result, we are not subject to U.S. proxy rules and are not subject to Exchange Act reporting obligations that, to some extent, are more lenient and less frequent than those of a U.S. domestic public company.
We report under the Exchange Act as a non-U.S. company with foreign private issuer status. Because we qualify as a foreign private issuer under the Exchange Act, we are exempt from certain provisions of the Exchange Act that are applicable to U.S. domestic public companies, including (i) the sections of the Exchange Act regulating the solicitation of proxies, consents or authorizations in respect of a security registered under the Exchange Act, (ii) the sections of the Exchange Act requiring insiders to file public reports of their share ownership and trading activities and liability for insiders who profit from trades made in a short period of time and (iii) the rules under the Exchange Act requiring the filing with the SEC of current reports on Form 8-K and quarterly reports on Form 10-Q containing unaudited financial and other specified information, although we provide and intend to continue to provide comparable quarterly information on Form 6-K. In addition, foreign private issuers are not required to file their annual report on Form 20-F until 120 days after the end of each fiscal year, while U.S. domestic issuers that are large accelerated filers are required to file their annual report on Form 10-K within 60 days after the end of each fiscal year. Foreign private issuers are also exempt from Regulation FD, which is intended to prevent issuers from making selective disclosures of material information. As a result of all of the above, you may not have the same protections afforded to shareholders of a company that is not a foreign private issuer.
We may lose our foreign private issuer status in the future, which could result in significant additional costs and expenses.
As discussed above, we are a foreign private issuer, and therefore, we are not required to comply with all of the periodic disclosure and current reporting requirements of the Exchange Act. The determination of foreign private issuer status is made annually on the last business day of an issuer’s most recently completed second fiscal quarter, and, accordingly, the next determination will be made with respect to us on June 30, 2024. In the future, we would lose our foreign private issuer status if (i) more than 50% of our outstanding voting securities are owned by U.S. residents and (ii) a majority of our directors or executive officers are U.S. citizens or residents, or we fail to meet additional requirements necessary to avoid loss of foreign private issuer status. If we lose our foreign private issuer status, we will be required to file with the SEC periodic reports and registration statements on U.S. domestic issuer forms, which are more detailed and extensive than the forms available to a foreign private issuer. We will also have to mandatorily comply with U.S. federal proxy requirements, and our officers, directors and principal shareholders will become subject to the short-swing profit disclosure and recovery provisions of Section 16 of the Exchange Act. In addition, we will lose our ability to rely upon exemptions from certain corporate governance requirements under the listing rules of the New York Stock Exchange (“NYSE”). As a U.S. listed public company that is not a foreign private issuer, we will incur significant additional legal, accounting and other expenses that we will not incur as a foreign private issuer, and accounting, reporting and other expenses in order to maintain a listing on a U.S. securities exchange. These expenses will relate to, among other things, the obligation to present our financial information in accordance with U.S. GAAP in the future.
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As we are a “foreign private issuer” and intend to follow certain home country corporate governance practices, our shareholders may not have the same protections afforded to shareholders of companies that are subject to all NYSE corporate governance requirements.
As a foreign private issuer, we have the option to follow certain home country corporate governance practices rather than those of the NYSE, provided that we disclose the requirements we are not following and describe the home country practices we are following. We intend to rely on this “foreign private issuer exemption” with respect to the NYSE rules for shareholder meeting quorums and record dates and the NYSE rules requiring shareholders to approve equity compensation plans and material revisions thereto, neither of which is required under the Cayman Islands law. We may in the future elect to follow home country practices with regard to other matters, including the requirement that listed companies have a majority of independent directors unless the company is a “controlled company” and the requirement that listed companies have a compensation and nominating and corporate governance committee comprised entirely of independent directors. As a result, our shareholders may not have the same protections afforded to shareholders of companies that are subject to all NYSE corporate governance requirements.
We cannot assure you that a market for our ordinary shares will be sustained to provide adequate liquidity, and public trading markets may experience volatility. Investors may not be able to resell their ordinary shares at or above the price they pay.
We cannot assure you that an active trading market for our ordinary shares will be sustained. If a market is not sustained, it may be difficult for you to sell your ordinary shares. Public trading markets may also experience volatility and disruption. This may affect the pricing of the ordinary shares in the secondary market, the transparency and availability of trading prices, the liquidity of the ordinary shares and the extent of regulation applicable to us. We cannot predict the prices at which our ordinary shares will trade. It is possible that, in future quarters, our operating results may be below the expectations of securities analysts and investors. As a result of these and other factors, the price of our ordinary shares may decline, possibly materially.
Our operating results and ordinary share price may be volatile, and the market price of our ordinary shares may drop below the price you pay.
Our quarterly operating results are likely to fluctuate in the future in response to numerous factors, many of which are beyond our control, including each of the factors set forth above.
In addition, securities markets worldwide have experienced, and are likely to continue to experience, significant price and volume fluctuations. This market volatility, as well as general economic, market or political conditions, could subject the market price of our ordinary shares to wide price fluctuations regardless of our operating performance. Our operating results and the trading price of our ordinary shares may fluctuate in response to various factors, including the risks described above.
These and other factors, many of which are beyond our control, may cause our operating results and the market price and demand for our ordinary shares to fluctuate substantially.
Fluctuations in our quarterly operating results could limit or prevent investors from readily selling their ordinary shares and may otherwise negatively affect the market price and liquidity of ordinary shares. In addition, in the past, when the market price of a stock has been volatile, holders of that stock have sometimes instituted securities class action litigation against the company that issued the shares. If any of our shareholders brought a lawsuit against us, we could incur substantial costs defending the lawsuit. Such a lawsuit could also divert the time and attention of our management from our business, which could significantly harm our profitability and reputation.
Sales of a substantial number of our total issued and outstanding ordinary shares could cause the market price of our ordinary shares to drop significantly, even if our business is doing well.
Sales of a substantial number of our ordinary shares in the public market, or the perception in the market that the holders of a large number of ordinary shares intend to sell, could reduce the market price of our ordinary shares. As of December 31, 2023, we had 332,519,151 ordinary shares outstanding. All of our ordinary shares are freely tradable under the Securities Act without restriction, except for any of our ordinary shares that may be held or acquired by our directors, executive officers and other affiliates, as that term is defined in the Securities Act, which are restricted securities under the Securities Act. Restricted securities may not be sold in the public market unless the sale is registered under the Securities Act or an exemption from registration is available.
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Further, we have filed a registration statement on Form S-8 to register our ordinary shares for issuance under our 2021 Omnibus Incentive Plan. Subject to the satisfaction of vesting conditions, shares registered under these registration statements on Form S-8 become available for resale immediately in the public market without restriction. We also entered into a registration rights agreement, pursuant to which we agreed under certain circumstances to file a registration statement to register the resale of the ordinary shares held by certain of our existing shareholders, as well as to cooperate in certain public offerings of such ordinary shares and to reimburse such shareholders for certain expenses incurred in connection therewith. See Item 7.B. “Related Party Transactions.”
In the future, we may also issue additional securities if we need to raise capital or make acquisitions, which could constitute a material portion of our then-issued and outstanding ordinary shares and would result in the dilution of our existing shareholders, which could have a material adverse effect on our business, prospects, financial condition and/or results of operation.
We continue to incur increased costs and have additional obligations as a result of operating as a public company, and our management is required to devote substantially more time to new compliance initiatives and corporate governance practices.
As a public company, we continue to incur significantly more legal, accounting and other expenses than we did as a private company, and have additional obligations such as regulatory financial reporting requirements. The Sarbanes-Oxley Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, the listing requirements of the NYSE and other applicable securities rules and regulations impose various requirements on public companies, including establishment and maintenance of effective disclosure and financial controls and corporate governance practices. Our management and other personnel need to devote a substantial amount of time to these compliance initiatives. Moreover, these rules and regulations continue to increase our legal and financial compliance costs and will make some activities more time-consuming and costly. For example, these rules and regulations may make it more difficult and more expensive for us to obtain director and officer liability insurance, and could also make it more difficult for us to attract and retain qualified members of our board of directors. We may also face challenges in complying with our increased obligations in the required or expected timeframes.
We continue to evaluate these rules and regulations, and cannot predict or estimate the amount of additional costs we may incur or the timing of such costs. These rules and regulations are often subject to varying interpretations, in many cases due to their lack of specificity, and, as a result, their application in practice may evolve over time as new guidance is provided by regulatory and governing bodies. This could result in continuing uncertainty regarding compliance matters and higher costs necessitated by ongoing revisions to disclosure and governance practices.
To establish (and ultimately, maintain) the effectiveness of our disclosure controls and procedures and our internal control over financial reporting, we expect that we will need to continue enhancing existing, and implement new, financial reporting and management systems, procedures and controls to manage our business effectively and support our growth in the future. The process of evaluating our internal control over financial reporting requires an investment of substantial time and resources, including by our Chief Financial Officer and other members of our senior management. As a result, this process may divert internal resources and take a significant amount of time and effort to complete.
The restatement of our consolidated financial statements could subject us to a number of additional risks and uncertainties, including regulatory, shareholder or other actions, and loss of investor confidence.
As a result of any restatement to correct an error in our financial statements, we may become subject to additional risks and uncertainties, including, among others, substantial expenses for increased professional fees and costs and time commitment that may be required to address matters related to a restatement, and scrutiny of the SEC and other regulatory bodies which could cause investors to lose confidence in our reported financial information and could subject us to civil or criminal penalties or shareholder litigation. We could face monetary judgments, penalties or other sanctions that could have a material adverse effect on our business, financial condition and results of operations and could cause our stock price to decline.
For example, we restated our audited consolidated financial statements as of and for the period ended December 31, 2021 originally included in our Annual Report on Form 20-F for the year ended December 31, 2021, and the unaudited consolidated financial statements as of and for the period ended March 31, 2022, respectively, due to an error that occurred in the provisional business combination accounting for our November 2021 acquisition of a 51% controlling interest in I-Systems Soluções de Infraestrutura S.A. (formerly known as Fiberco Soluções de Infraestrutura S.A.) (“I-Systems”). These errors resulted in an overstatement of goodwill, and understatements of non-controlling interest and other reserves that were required to the financial statements for the periods in question.
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The review of the error and the preparation of the restated financial statements caused us to incur substantial expenses for legal, accounting, and other professional services and diverted our management’s attention from our business, and the impact of such errors or any future errors that result in a restatement could require additional resources. In addition, as a result of the restatements, investors may lose confidence in our operating results, and we may be subject to shareholder or other litigation or regulatory enforcement actions in connection with the restatement.
Inaccurate assumptions in respect of critical accounting judgments could materially adversely affect financial results.
In the course of preparing financial statements our management necessarily makes judgments and estimates that can have a significant impact on our financial statements. The most critical of these relate to impairment of assets, fair value of embedded derivatives and options, contingent liabilities, revenue recognition and certain regulatory accruals. The use of inaccurate assumptions in calculations for any of these estimates could have a material adverse effect on our business, prospects, financial condition and/or results of operations. Our operating results may be adversely affected if the assumptions change or if actual circumstances differ from those in the assumptions, which could cause our operating results to fall below the expectations of securities analysts and investors, resulting in a decline in the price of our ordinary shares.
Because we have no current plans to pay regular cash dividends on our ordinary shares, you may not receive any return on investment unless you sell your ordinary shares for a price greater than that which you paid for it.
We do not currently anticipate paying any regular cash dividends on our ordinary shares. Any decision to declare and pay dividends in the future will be made at the discretion of our board of directors and will depend on, among other things, our results of operations, financial condition, cash requirements, contractual restrictions and other factors that our board of directors may deem relevant. In addition, our ability to pay dividends is, and may be, limited by covenants of existing and any future outstanding indebtedness we or our subsidiaries incur. Therefore, any return on investment in our ordinary shares is solely dependent upon the appreciation of the price of our ordinary shares on the open market, which may not occur, which could, in turn, have a material adverse effect on our business, prospects, financial condition and/or results of operations. See Item 8.A. “Financial Information—Consolidated Statements and Other Financial Information—Dividend Policy” for more detail.
IHS Holding Limited is a holding company with no operations of its own and, as such, it depends on its subsidiaries for cash to fund its operations and expenses, including future dividend payments, if any.
As a holding company, our principal source of cash flow is distributions or payments from our operating subsidiaries. Therefore, our ability to fund and conduct our business, service our debt and pay dividends, if any, in the future depends on the ability of our subsidiaries and intermediate holding companies to make upstream cash distributions or payments to us, which may be impacted, for example, by their ability to generate sufficient cash flow or limitations on the ability to repatriate funds whether as a result of currency liquidity restrictions, monetary or exchange controls or otherwise. Our operating subsidiaries and intermediate holding companies are separate legal entities, and although they are directly or indirectly wholly owned and/or controlled by us, they have no obligation to make any funds available to us, whether in the form of loans, dividends or otherwise. The ability of our operating subsidiaries and intermediate holding companies to distribute cash to us will also be subject to, among other things, restrictions that may be contained in the agreements governing our indebtedness as entered into from time to time, including the IHS Holding RCF, the IHS Holding 2022 Term Loan and the Notes, and the facilities of our operating subsidiaries, availability of sufficient funds in such subsidiaries and applicable laws, taxes and regulatory restrictions, including monetary or fiscal controls and restrictions. Claims of any creditors of any of our subsidiaries generally will have priority as to the assets of such subsidiaries over our claims and claims of our creditors and shareholders. To the extent the ability of any of our subsidiaries to distribute dividends or other payments to us is limited in any way, our ability to fund and conduct our business, service our debt and pay dividends, if any, could be harmed.
Our shareholders may face difficulties in protecting their interests because we are a Cayman Islands exempted company.
Our corporate affairs are governed by our amended and restated memorandum and articles of association (our “Articles”), the Companies Act and the common law of the Cayman Islands. The rights of shareholders to take legal action against our directors and us, actions by minority shareholders and the fiduciary responsibilities of our directors to us under Cayman Islands law are to a large extent governed by the common law of the Cayman Islands. The common law of the Cayman Islands is derived in part from judicial precedent in the Cayman Islands as well as from English common law, which has persuasive, but not binding, authority on a court in the Cayman Islands.
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The rights of our shareholders and the fiduciary responsibilities of our directors under the laws of the Cayman Islands are not as clearly defined as under statutes or judicial precedent in existence in jurisdictions in the United States. Therefore, you may have more difficulty protecting your interests than would shareholders of a corporation incorporated in a jurisdiction in the United States, due to the comparatively less well-developed Cayman Islands law in this area.
A merger or consolidation may proceed under Cayman Islands law in one of two ways: by a court-sanctioned scheme of arrangement or by a statutory merger. While Cayman Islands law allows a shareholder objecting to a court sanctioned scheme of arrangement to express a view that such scheme of arrangement would not provide fair value for the shareholder’s shares, Cayman Islands statutory and common law in respect of schemes of arrangement does not specifically provide for shareholder appraisal rights in connection with a merger or consolidation effected by a scheme of arrangement of a company that has otherwise received the prescribed shareholder approval. This may make it more difficult for you to assess the value of any consideration you may receive in a merger or consolidation effected by a scheme of arrangement or to require that the acquirer gives you additional consideration if you believe the consideration offered is insufficient. However, in the event of a merger or consolidation under the statutory merger regime, Cayman Islands law does provide a mechanism for a dissenting shareholder to require us to apply to the Grand Court for a determination of the fair value of the dissenter’s shares if it is not possible for the company and the dissenter to agree on a fair price within the time limits prescribed.
Shareholders of Cayman Islands exempted companies such as ours, have no general rights under Cayman Islands law to inspect corporate records and accounts or to obtain copies of lists of shareholders. Our directors have discretion under our Articles to determine whether or not, and under what conditions, our corporate records may be inspected by our shareholders, but are not obliged to make them available to our shareholders. This may make it more difficult for you to obtain information needed to establish any facts necessary for a shareholder motion or to solicit proxies from other shareholders in connection with a proxy contest.
It should be noted that the Cayman Islands law has no legislation specifically dedicated to the rights of investors in securities, and thus no statutorily defined private causes of action to investors in securities such as those found under the Securities Act or the Exchange Act in the United States. Subject to limited exceptions, under Cayman Islands law, a shareholder may not bring a derivative action against the board of directors. Class actions are not recognized in the Cayman Islands, but groups of shareholders with identical interests may bring representative proceedings, which are similar.
As a result of all of the above, our public shareholders may have more difficulty in protecting their interests in the face of actions taken by our management or members of the board of directors than they would as public shareholders of a company incorporated in the United States.
Our Articles provide, unless we consent in writing to the selection of an alternative forum, the federal courts of the United States shall have exclusive jurisdiction to hear, settle and/or determine any dispute, controversy or claim arising under the provisions of the Securities Act or the Exchange Act, which could increase a shareholder’s cost and limit such shareholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors, officers or other employees, which may discourage lawsuits against us and our directors, officers and other employees.
Our Articles provide unless we consent in writing to the selection of an alternative forum (a) the federal courts of the United States shall have exclusive jurisdiction to hear, settle and/or determine any dispute, controversy or claim arising under the provisions of the Securities Act or the Exchange Act, which are referred to as the U.S. Actions; and (b) save for such U.S. Actions, the courts of the Cayman Islands shall have exclusive jurisdiction over any claim or dispute arising out of or in connection with the Articles or otherwise related in any way to each member’s shareholding in us, including but not limited to (i) any derivative action or proceeding brought on behalf of us; (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers or other employees to us (iii) any action asserting a claim arising pursuant to any provision of the Companies Act of the Cayman Islands or the Articles; or (iv) any action asserting a claim against us concerning our internal affairs.
This choice of forum provision may increase a shareholder’s cost and limit the shareholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors, officers or other employees, which may discourage lawsuits against us and our directors, officers and other employees. Any person or entity purchasing or otherwise acquiring any of our shares or other securities, whether by transfer, sale, operation of law or otherwise, shall be deemed to have notice of and have irrevocably agreed and consented to these provisions. The enforceability of similar choice of forum provisions in other companies’ charter documents has been challenged in legal proceedings.
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It is possible that a court could find this type of provision to be inapplicable or unenforceable, and if a court were to find this provision in our Articles to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving the dispute in other jurisdictions, which could have a material adverse effect on our financial condition and/or results of operations.
Anti-takeover provisions in our organizational documents and Cayman Islands law may discourage or prevent a change of control, even if an acquisition would be beneficial to our shareholders, which could depress the price of our ordinary shares and prevent attempts by our shareholders to replace or remove our current management.
Our Articles contain provisions that may discourage unsolicited takeover proposals that shareholders may consider to be in their best interests. Our board of directors has the ability to designate the terms of and issue preferred shares without shareholder approval. In addition, Board vacancies may be filled by an affirmative vote of the remaining Board members. The directors are divided into three classes designated as Class I, Class II and Class III, respectively, and directors will generally be elected to serve staggered three-year terms. The term of the Class I Directors shall expire at the third annual general meeting of the Company in 2024. The term of office of the Class II Directors shall expire at the fourth annual general meeting of the Company in 2025. The term of office of the Class III Directors shall expire at the fifth annual general meeting of the Company in 2026. A Director whose term has expired may be reappointed in accordance with the terms of the Articles. These provisions may make it more difficult to remove directors. Pursuant to the terms of a settlement agreement that the Company entered into with Wendel, at the Company’s annual general meeting for fiscal year 2024, shareholders will have the opportunity to approve an amendment to our Articles that would declassify the board of directors. If approved, that amendment to our Articles would provide for all directors to be elected on an annual basis rather than a staggered basis following the annual general meeting for fiscal year 2025.
Our Articles contain a prohibition on business combinations with any “interested” shareholder for a period of three years after such person becomes an interested shareholder unless (1) there is advance approval of our Board, (2) the interested shareholder owns at least 85% of our voting shares at the time the business combination commences or (3) the combination is approved by shareholders holding at least two-thirds of the votes attaching to the ordinary shares that are not held by the interested shareholder.
Taken together, these provisions may discourage transactions that otherwise could involve payment of a premium over prevailing market prices for our ordinary shares.
There may be difficulties in enforcing foreign judgments against our management or us.
Certain of our directors and management and certain of the other parties named in this Annual Report reside outside the United States. Most of our assets and such persons’ assets are located outside the United States. As a result, it may be difficult or impossible for investors to effect service of process upon us within the United States or other jurisdictions, including judgments predicated upon the civil liability provisions of the federal securities laws of the United States.
In particular, investors should be aware that there is uncertainty as to whether the courts of the Cayman Islands or any other applicable jurisdictions would recognize and enforce judgments of U.S. courts obtained against us or our directors or management predicated upon the civil liability provisions of the securities laws of the United States or any state in the United States or entertain original actions brought in the Cayman Islands or any other applicable jurisdictions courts against us or our directors or officers predicated upon the securities laws of the United States or any state in the United States.
If securities or industry analysts do not publish or cease publishing research or reports about us, our business or our market, or if they change their recommendations regarding our ordinary shares adversely, the price and trading volume of our ordinary shares could decline.
The trading market for our ordinary shares is influenced by the research and reports that industry or securities analysts publish about us, our business, our market or our competitors. If any of the analysts who cover us or may cover us in the future change their recommendation or price targets regarding our ordinary shares adversely, or provide more favorable relative recommendations about our competitors, the price of our ordinary shares could decline. If any analyst who covers us or may cover us in the future were to cease coverage of our company or fail to regularly publish reports on us, we could lose visibility in the financial markets, which in turn could cause the price or trading volume of our ordinary shares to decline.
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Item 4. Information on the Company.
A. History and Development of the Company
IHS Holding Limited was originally incorporated in the Republic of Mauritius as a private company limited by shares on July 26, 2012 under the Mauritian Companies Act 2001. On October 13, 2021, IHS Holding Limited ceased to be incorporated in the Republic of Mauritius and was incorporated and registered by way of continuation as an exempted company with limited liability under the Companies Act (as amended) of the Cayman Islands.
Our legal name is IHS Holding Limited and our commercial name is IHS Towers. Our principal executive offices are located at 1 Cathedral Piazza, 123 Victoria Street, London SW1E 5BP, United Kingdom. Our telephone number at this address is +44 20 8106 1600. Our website address is www.ihstowers.com. The information contained on, or that can be accessed through, our website is not a part of, and shall not be incorporated by reference into, this Annual Report. We have included our website address as an inactive textual reference only. The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers, such as we, that file electronically, with the SEC at www.sec.gov. Our agent for service of process in the United States is C T Corporation System and its address is 28 Liberty Street, New York, New York 10005.
For a description of our principal capital expenditures and divestitures for the three years ended December 31, 2023 and for those currently in progress, see Item 5. “Operating and Financial Review and Prospects.”
B. Business Overview
We are one of the largest independent owners, operators and developers of shared communications infrastructure in the world, providing our customers, most of whom are leading MNOs, with critical infrastructure that facilitates mobile communications coverage and connectivity for approximately 780 million people in emerging markets, across three regions and eleven countries. We are the largest independent multinational emerging-market-only tower operator and one of the largest independent multinational tower operators globally, in each case by tower count. As of December 31, 2023, we operated 40,075 Towers across seven countries in Africa, three countries in Latin America and one country in the Middle East. As of December 31, 2023, we are the largest independent tower operator in seven of the eleven markets in which we operate, and we are the only independent tower operator of scale in five of these markets.
We have a well-defined organic and inorganic expansion strategy designed to grow in existing markets with our existing and new customers and, given the significant global emerging market opportunities in communications infrastructure, enter carefully selected growth oriented markets with compelling underlying fundamentals. Historically, our business has been predominantly focused on the African continent, however in 2020 we started complementing this with investment into other regions and adjacent communications infrastructure offerings. Our initial expansion outside of Africa was in the Middle East via Kuwait, and we later further expanded our footprint with our entrance into Latin America via Brazil, Peru and Colombia. Each of these acquisitions supported our inorganic growth strategy of expanding into additional regions that met our investment criteria, which opened up new markets that we believed would provide future organic and inorganic growth opportunities. Our investment criteria suggests that inorganic growth opportunities will be limited for the foreseeable future, as we assess inorganic investment as just one of various forms of capital allocation.
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Largest Independent Multinational Tower Companies Globally
Source: Company filings
Note: Data as of March 2024 for PTI. Data as of December 31, 2023 for ATC, Cellnex, GD Towers, IHS and SBA. Data as of September 30, 2023 for Helios. “ATC” refers to American Tower Corporation, “Cellnex” refers to Cellnex Telecom S.A., “SBA” refers to SBA Communications Corporation, “PTI” refers to Phoenix Towers International and “Helios” refers to Helios Towers plc.
For the years ended December 31, 2023 and 2022, we generated revenue of $2,126 million and $1,961 million, losses for the period of $1,988 million and $469 million and Adjusted EBITDA of $1,133 million and $1,031 million, respectively. See Item 5.A. “Operating Results—Key Financial and Operational Performance Indicators—Return Adjusted EBITDA” for a reconciliation of Adjusted EBITDA to profit/(loss) for the period, the most directly comparable IFRS measure.
Our core business is providing shared communications infrastructure services to MNOs and other customers, who in turn provide wireless voice, data and fiber services to their end users and subscribers. We provide our customers with opportunities to lease space on existing Towers alongside current Tenants, known as Colocation, to install additional equipment on a Tower or request certain ancillary services, known as Lease Amendments, or to commission the construction of new Towers to the customer’s specifications, known as New Sites. Additionally, through I-Systems, we provide “Fiber-to-the-Home” or “FTTH” fiber connectivity to our customers through a neutral network infrastructure solution for broadband service, and in Nigeria we provide “Fiber-to-the-Tower” or “FTTT” connectivity to our customers. Finally, we lease space to our customers in secure locations within large building complexes, such as shopping malls, stadiums and airports, which we refer to as in-building solutions, or IBS, or distributed antenna systems, or DAS. In certain strategic instances, we may also provide Managed Services, such as maintenance, security and power supply for Towers owned by third parties. As of December 31, 2023, our owned and operated tower portfolio supported 59,727 Tenants, with a Colocation Rate of 1.49x.
Our primary customers are the leading MNOs in each of our markets. We also provide infrastructure and services to a number of other communications service providers. Our success in establishing deep customer relationships and operational excellence has enabled us to grow both organically and through 22 transactions, building a footprint that currently covers Nigeria, South Africa, Côte d’Ivoire, Cameroon, Zambia, Rwanda, Brazil, Colombia, Peru, Kuwait and Egypt. We are the largest independent tower operator in seven of the eleven markets in which we operate and are the only independent tower operator of scale in five of these markets. Our markets in Egypt (which we entered in 2021) and Latin America (which we entered in 2020) are the only ones in which we do not have a leadership position today.
To support the communications infrastructure needs of our customers, we typically enter into long-term MLAs of 5 to 10 years in duration, which have historically yielded strong renewal rates (see also Item 3.D. “Risk Factors — Risks Relating to Our Business — A significant portion of our revenue is derived from a small number of MNOs. Non-performance under or termination, non-renewal or material modification of customer lease agreements with these customers could have a material adverse effect on our business, prospects, financial condition and/or results of operations.”). As of December 31, 2023, the average remaining length of our MLAs with our Key Customers, who represented 94% of our Tenants, was 6.7 years. Additionally, these Key Customers had aggregate Contracted Revenue of $10.6 billion and an average remaining lease term of 7.5 years as of December 31, 2023.
Our MLAs typically include annual inflation-linked revenue escalators, limited customer termination rights and, in certain cases, provisions designed to mitigate foreign exchange risk, such as periodic reset mechanisms to adjust for local currency devaluation.
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For the years ended December 31, 2023, 2022 and 2021, 49%, 52% and 63%, respectively, of our revenue was linked to the U.S. dollar or euro. Foreign currency-linked elements implemented in certain of our contracts aim to help provide protection against potentially adverse movements in local currency. Our U.S. dollar-linked revenue is denominated in U.S. dollars in the relevant MLAs, but paid to us in local currency through contractual mechanisms. In such cases, including the majority of our revenue in Nigeria, and the minority of our revenue in Rwanda and Zambia, our MLAs may contain a formula for periodically determining the U.S. dollar to local currency exchange rate. In other cases, such as Côte d’Ivoire and Cameroon, the MLAs are in local currencies that have a fixed exchange rate, or are “pegged”, to the euro. Our South Africa market and MENA and Latam segments have MLAs which typically only contain local currency lease fees. See Item 3.D. “Risk Factors — Risks Relating to Our Business — The existence of multiple foreign exchange markets with different exchange rates may impact the rate at which our operating subsidiaries’ financial results are translated into U.S. dollars for group reporting purposes, which may impact our financial condition and/or results of operations.”
We have historically increased the number of our owned and operated Towers through a combination of constructing New Sites, as well as through acquisitions of tower portfolios from MNOs and independent tower companies. Shortly after entering new markets through acquisitions, we typically begin constructing New Sites.
IHS Towers Overview by Country
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Market Share |
||||||
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|
|
|
|
|
Estimated |
|
Estimated |
|
|
|
|
|
|
# of IHS |
|
# of IHS |
|
Outsourced |
|
Total |
|
|
|
|
2022 |
|
Towers |
|
Towers |
|
Towers |
|
Towers |
|
|
|
|
Population |
|
December 31, |
|
December 31, |
|
December 31, |
|
December 31, |
|
IHS Towers |
Country |
|
(millions) |
|
2023 |
|
2022 |
|
2022 |
|
2022 |
|
Market Position |
Nigeria |
|
221 |
|
16,395 |
|
16,995 |
|
28,473 |
|
41,008 |
|
#1 |
South Africa |
|
60 |
|
5,691 |
|
5,691 |
|
11,429 |
|
25,848 |
|
#1 |
Côte d’Ivoire |
|
29 |
|
2,694 |
|
2,699 |
|
2,699 |
|
4,859 |
|
#1 |
Cameroon |
|
28 |
|
2,358 |
|
2,279 |
|
2,279 |
|
5,398 |
|
#1 |
Zambia |
|
20 |
|
1,879 |
|
1,862 |
|
1,862 |
|
3,643 |
|
#1 |
Rwanda |
|
14 |
|
1,434 |
|
1,319 |
|
1,336 |
|
1,861 |
|
#1 |
Brazil |
|
216 |
|
7,663 |
|
6,994 |
|
56,960 |
|
74,683 |
|
#4 |
Peru |
|
34 |
|
61 |
|
54 |
|
7,543 |
|
19,145 |
|
not meaningful |
Colombia |
|
52 |
|
228 |
|
228 |
|
9,345 |
|
19,039 |
|
not meaningful |
Kuwait |
|
4 |
|
1,672 |
|
1,531 |
|
1,531 |
|
6,354 |
|
#1 |
Egypt |
|
104 |
|
X |
|
X |
|
X |
|
26,629 |
|
not meaningful |
Source: Euromonitor International Limited (Economies & Consumers data) for Population, extracted April 2023, Analysys Mason estimates and IHS. South Africa outsourced towers as of December 2022 exclude approximately 4,000 Swiftnet towers reported as of March, 2023 since those towers are non-independent as Swiftnet is owned by Telkom South Africa. Market Position of independent tower companies is based on December 31, 2022 figures as per Analysys Mason.
We believe we offer a unique balance between existing infrastructure with visible revenue streams and high potential for revenue growth given the strong growth potential in our countries, the strength of our market positions within each country and our strategically important, unique tower locations. We believe that we are well positioned to improve margins and cash flow, while achieving long-term growth due to:
| ● | a large and scalable platform that provides critical infrastructure to help drive communications activity and broader digital and economic progress; |
| ● | a long-standing and stable operational platform that consistently delivers on our service level agreements to customers with proven network reliability; |
| ● | a well-defined organic expansion strategy designed to grow in existing markets with existing and new customers, complemented with an inorganic expansion strategy designed to assess and enter carefully selected growth-oriented markets with compelling underlying fundamentals, when feasible and |
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| ● | a comprehensive commitment towards contributing to sustainability and the well-being of our communities and environments where we operate. |
Our successful performance so far is the result of many years of building, acquiring, operating, managing, and owning communications infrastructure in emerging market environments. As one of the pioneers of the tower infrastructure industry in Africa, we have worked with our customers to develop the experience needed to operate and grow a successful business in our sector. Our experience has provided us with years of insight, deep operational expertise, and strong relationships with various stakeholders that we believe will allow us to enhance our leadership position in existing and new markets. Our track record is highlighted by the following milestones:
| ● | 2001: Founded as a builder of communication Towers for MNOs in Nigeria; our founders continue to lead the business today. |
| ● | 2004: Launched our Managed Services operations for MNO-owned Towers with services including maintenance, security and power supply. |
| ● | 2009: Began owning Towers and leasing space to MNOs in Nigeria and launched our Colocation operations through which we lease space to other MNOs. |
| ● | 2013: Acquired MTN Côte d’Ivoire’s tower portfolio of 911 Towers and MTN Cameroon’s 818 Towers. Additionally, completed MLL agreements for Orange Côte d’Ivoire’s tower portfolio of 1,191 Towers and Orange Cameroon’s 819 Towers. |
| ● | 2014: Entered Zambia and Rwanda through the acquisitions of MTN’s tower portfolios of 719 Towers in Zambia and 550 Towers in Rwanda. These transactions helped establish us as the largest independent tower company in EMEA by tower count. |
| ● | 2014: Executed landmark transactions in Nigeria to acquire a total of 10,966 Towers. We acquired 4,154 of these Towers from MTN Nigeria and 2,116 of these Towers from 9mobile in 2014 and the balance of 4,696 Towers from MTN Nigeria the following year. |
| ● | 2015: Expanded through the acquisitions of Airtel Zambia’s 949 Towers and Airtel Rwanda’s 200 Towers and further expanded in Nigeria through the acquisition of an additional 555 Towers from 9mobile. |
| ● | 2016: Acquired HTN Towers, which owned 1,211 Towers in Nigeria, in the first tower company-to-tower company transaction in Africa, reinforcing our leadership in Africa’s largest market. |
| ● | 2020: Expanded our footprint by entering the Middle East through the Kuwait Acquisition, in which entity we have a controlling interest. We completed the first closing of 1,022 towers in February 2020 and the second closing of 140 towers in October 2020. |
| ● | 2020: Expanded our footprint by entering Latin America through the completion of the CSS Acquisition, for 2,312 towers primarily across Brazil, as well as Peru and Colombia. |
| ● | 2021: Expanded our Latam business through the acquisitions of Skysites in Brazil, Centennial Brazil and Centennial Colombia, acquiring 1,005 towers, 602 towers and 217 towers, respectively. |
| ● | 2021: Completed the third and fourth closings of 67 towers and 126 towers in April 2021 and October 2021 in Kuwait, respectively, pursuant to the Kuwait Acquisition. Completed the acquisition of 162 towers in April 2021 from Airtel Rwanda. |
| ● | 2021: Completed our initial public offering (“IPO”) by issuing 18,000,000 ordinary shares at a price to the public of $21 per share, resulting in net proceeds to us of $357.7 million. |
| ● | 2021: Completed the TIM Fiber Acquisition with TIM Brasil to form I-Systems, which provides a neutral network infrastructure solution for broadband service in Brazil. |
| ● | 2021: Entered Egypt pursuant to the Egypt Transaction |
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| ● | 2022: Acquired 2,115 towers in Brazil pursuant to the GTS SP5 Acquisition. |
| ● | 2022: Completed the MTN SA Acquisition to enter the South African market by acquiring 5,691 towers in South Africa from MTN and completed the fifth closing of 43 towers in September 2022 in Kuwait pursuant to the Kuwait Acquisition. |
| ● | 2023: Completed the sixth closing of 101 towers in August 2023 in Kuwait pursuant to the Kuwait Acquisition. |
We believe that the underlying communications trends in our markets will continue to drive the need for additional infrastructure and enable us to further augment our growth through continued Colocation, Lease Amendments, New Site construction, adjacent communications infrastructure investments such as fiber, and acquisition activity. New communications infrastructure services such as small cells will further add to our growth opportunities with the roll-out of 5G in some of our markets. As of December 31, 2023, with an average age of our tower portfolio of 6.9 years, based on the date of integration of the sites, and a Colocation Rate of 1.49x, we believe that we have a young portfolio with ample capacity to continue growing organically, as well as to realize further gains on operating margins from operational efficiencies. We believe this organic growth will help drive enhanced cash flow generation from our existing assets.
Considering our historical growth and diversification, the table below presents our geographic segment revenue as a percentage of total revenue, for the periods indicated:
|
|
As of December 31, |
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|
|
2021 |
|
2022 |
|
2023 |
|
Geographic Segment |
|
|
|
|
|
|
|
Nigeria |
|
72.6 |
% |
69.0 |
% |
65.0 |
% |
SSA |
|
21.8 |
% |
21.0 |
% |
23.7 |
% |
Latin America |
|
3.8 |
% |
8.2 |
% |
9.4 |
% |
Middle East and North Africa |
|
1.9 |
% |
1.8 |
% |
1.9 |
% |
For further discussion regarding the principal markets in which we compete, including a breakdown of total revenue by category of activity and geographic market, please refer to ‘note 5. Segment Reporting’ and ‘note 6. Revenue’ of our audited consolidated financial statements included in this Annual Report.
Our Competitive Strengths
We believe the following strengths position us to deliver operationally for our customers as well as generate strong financial returns and growth:
We are a clear leader in the majority of our current markets, which we support with a high quality asset base and service.
Large and Growing Telecommunications Markets. We believe the markets in which we currently operate are structurally favorable, as a result of having large, growing populations and low mobile penetration, particularly relating to 4G and 5G SIM penetration. Our eleven markets covered approximately 860 million SIMs as of December 31, 2022. Our African markets are generally characterized by low mobile penetration, and a high number of subscribers per tower compared with the U.S. and Western Europe. These markets are also attractive due to an increasing need for 3G and 4G coverage and capacity, with 49% 3G SIM penetration and only 30% 4G SIM penetration as of December 31, 2022 (blended average metrics based on IHS Towers’ number of towers in each market as of December 31, 2022, including the commitment to deploy 5,800 towers in Egypt). Over the longer term, we also expect 5G technology to become more meaningful in these markets. To meet the anticipated telecommunications growth in our African markets, including Egypt and South Africa, which we entered in 2021 and 2022, respectively, it is expected that these markets will require over 31,000 new towers and over 53,000 new MNO points of presence over the period December 2022 to December 2027. We believe that our Latin America markets also provide exposure to growth and technology trends, It is estimated that these markets will require over 24,000 new towers and over 52,000 new MNO points of presence over the period from December 2022 to December 2027. As telecommunication networks in our markets evolve, we believe that there may also be increasing demand for other communications infrastructure, such as fiber connectivity and data centers.
Significant Market Scale. We are the number one independent tower operator in seven of our eleven markets. As of December 31, 2022, we had an estimated 60% and 50% market share of independently owned or operated sites in Nigeria and South Africa (Swiftnet is owned by Telkom South Africa and is therefore excluded from the calculation), respectively, which are two of the largest telecommunications markets in Africa by subscribers.
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In addition, we are the only independent tower operator of scale in five of our eleven markets and as of December 31, 2022, we are the largest independent tower operator in Africa, measured by tower count.
As a leader in many of our markets, we benefit from operational efficiencies that help drive financial performance. We have strategically acquired multiple tower portfolios in each of our African markets and have selectively consolidated Towers, where we move Tenants from one Tower to another, to reduce costs. Follow-on transactions in new markets are an important element of our inorganic growth strategy, and we have reinforced our position in our markets, completing follow-on transactions in each of our African markets (excluding South Africa and Egypt), as well as Brazil and Colombia. We own or operate approximately 37% of all Towers (64% of independent Towers) in our combined African markets (excluding Egypt) as of December 31, 2022 and therefore benefit when MNOs invest in additional coverage and capacity, either on our existing sites or through the share of new sites we deliver in the market. We believe our scale and market position gives us a unique opportunity to increase our revenue per tower through Colocation and Lease Amendments as MNOs upgrade their networks from 2G and 3G to 4G and 5G.
Substantial and Defensible Market Share. Given the size and scale of our business and our track record of growth and service to our customers, we believe we are well positioned to maintain or even grow our market share. Our market position is backed by long-term contracts that we have a history of successfully maintaining. For the period covering 2023, 2022 and 2021, we have added 16,863 Tenants, 18,620 Lease Amendments and constructed 3,861 New Sites. As of December 31, 2023, we have built over 10,000 New Sites since our inception. We continue to provide quality service and take a partnership approach with our customers in radio frequency planning. We also benefit from high barriers to entry in our industry, including the capital intensive nature of building new tower portfolios and, in certain instances, zoning rules that restrict Towers and masts from being built within a certain radius of each other. We believe these factors underpin the strength of our market leadership and position us to take advantage of opportunities in our markets.
We have a proven business model with high quality revenue visibility that is backed by long-term, inflation-linked contracts.
Proven business model coupled with recurring revenue and long-term contracts. We offer MNOs reliable services in exchange for monthly lease fees that are underpinned by long-term contracts, creating long-term revenue visibility. For MNOs, there are high costs and potential service interruptions associated with switching tower infrastructure and, historically, we have had a track record of successfully renegotiating and extending our contracts with MNOs, including with Key Customers in Nigeria in 2020, 2022 and 2024, and in Cameroon and Côte d’Ivoire in 2023. As of December 31, 2023, we had $10.6 billion of Contracted Revenue from our Key Customers, an average remaining lease term of 7.5 years and an average remaining length of our MLAs of 6.7 years. In many cases, our contracts also include limited customer termination rights, inflation-linked revenue escalators and power indexation clauses to mitigate against certain increases in diesel prices. In certain cases, our contracts also include provisions designed to mitigate foreign exchange risk, such as periodic reset mechanisms to adjust for local currency devaluations.
The majority of our revenue comes from MNOs that are subsidiaries of large, publicly listed multinational MNOs. Our Key Customers are primarily the country subsidiaries of publicly listed multinational MNOs such as MTN Group, Airtel Africa, Orange Group, Telecom Italia, Zain Group, America Movil, Telefonica, and Millicom.
Structurally favorable unit economics. The limited competing infrastructure in the vicinity of our Towers helps enable strong demand from existing customers and positions our Towers as the preferred location for potential new demand. Time to market advantages for New Site construction, cost-to-build considerations and in some cases, regulatory restrictions create natural and high barriers to entry into our markets. We are able to achieve favorable unit economics through additional Tenants and Lease Amendments via Colocation that allow us to improve our margins and our return on invested capital. When we add additional Tenants via Colocation, we generally incur limited incremental costs and typically do not provide additional tenant discounts. We also have the ability to reduce certain of our costs per Tenant, which are mostly fixed, with the exception of power costs in our African and Middle East markets, which are variable. With a Colocation Rate of 1.49x across our portfolio as of December 31, 2023, our sites have the capacity to add additional Tenants before reaching a similar Colocation Rate as our older tower vintages. For example, as of December 31, 2023, our tower vintages up to 2012 had a Colocation Rate of 2.27x. We believe our success in leasing up and colocating on our older Towers is a strong indicator of our ability to lease-up, grow revenue and expand margins on our newer Towers.
We have contractual protections against macroeconomic volatility. For the years ended December 31, 2023, 2022 and 2021, 49%, 52%, and 63%, respectively, of our revenue was linked to the U.S. dollar or euro. Most of our operating
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costs are in local currency, and we have structured our contracts to provide protection against inflation and, in some cases, local currency devaluation.
Our MLAs in our MENA and Latam segments have local currency lease fees with annual inflation linked escalators. In our SSA and Nigeria segments the local currency components of our lease fees typically adjust with local currency linked inflation provisions and U.S. dollar components of our lease fees present in some of our African market MLAs typically adjust with U.S.-linked inflation provisions. The majority of our costs do not have mechanical indexation, enabling us to both grow our revenue and manage our cost base. With the exception of the cost of diesel, the majority of which is paid in U.S. dollars, substantially all of our direct and indirect operating expenses are denominated in and incurred in local currency. Capital expenditures may be linked to U.S. dollars in some instances, but are also incurred in local currency, providing further resilience to macroeconomic volatility.
We have a track record of both organic and inorganic growth.
We have a number of organic growth opportunities. There are a number of avenues that have driven our historical organic growth and that we believe will continue to drive future organic growth, including Colocation, Lease Amendments and New Sites. These opportunities are typically the result of our customers looking to densify their networks, improve their network coverage and capacity and upgrade their networks with new technologies, in response to growing populations and data demand from end users in our markets. Our MLAs also typically include annual inflation-linked escalations, ensuring contractual increases to revenue.
In response to these growing needs, we benefit from customers choosing Colocation in order to get to market quickly on an existing site of ours. Colocations are a highly attractive opportunity as they enable us to lease-up our existing assets with minimal incremental capital expenditure and operating expenses required. As of December 31, 2023, 2022 and 2021, we achieved a Colocation Rate of 1.49x, 1.48x and 1.50x, respectively. When we acquire towers from mobile operators, these typically have a low Colocation Rate that reduces our overall Colocation Rate, but at the same time these towers result in a further Colocation opportunity for our other customers.
Lease Amendments represent an opportunity for existing Tenants to enhance their existing position or upgrade technology at a Tower by installing additional equipment on that Tower or requesting certain ancillary services. For the years ended December 31, 2023, 2022 and 2021, we added 4,929, 4,550 and 9,141 Lease Amendments, respectively. Colocation and Lease Amendments both support our growth and increase our operating leverage.
We typically construct New Sites after obtaining a commitment for a long-term lease with an initial tenant and, in general, if we are aware of, or believe there is, commercial potential for Colocation. Since our inception, we have built over 10,000 New Sites. For the years ended December 31, 2023, 2022 and 2021, we built 1,329, 1,184 and 1,348 New Sites, respectively.
We also benefit from the opportunity to generate revenue from adjacent services, including fiber, DAS, small cells and data centers. In terms of fiber services, through I-Systems, we provide FTTH connectivity to our customers through a neutral network infrastructure solution for broadband service, and in Nigeria we provide FTTT connectivity to our customers. These opportunities do not constitute a material contribution to our revenue today, although we look to continue to expand these opportunities as an area of growth in the future, particularly in Brazil, Nigeria, South Africa, Zambia and Kuwait, where 5G roll-out has already commenced.
We have a track record of inorganic growth through acquiring, consolidating and integrating tower portfolios. Since our inception, we have completed 22 transactions for more than 32,500 Towers and fiber assets across ten countries. These transactions have enabled us to achieve our strong in-market positioning, which is key to both our ability to provide high quality services and to ensure the sustainability of the fundamentals of our business.
Our inorganic growth strategy focuses on entering carefully selected growth oriented markets with compelling underlying fundamentals, when feasible. A key component of this inorganic growth lies in our strategy to then develop each of the markets that we enter. We aim to execute follow-on, in-market transactions upon entering a new market, in order to solidify our presence as well as extract cost synergies from our operational platform across our large asset base. In addition to building our market presence, this strategy has allowed us to better service our customers through our extensive platform.
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We have an established history of delivering high quality service to our customers.
We have long-term relationships with leading MNOs. For most of our Key Customers, our sites are the primary tower infrastructure that supports their operations, making us a key long-term partner to them. Through these partnerships, we have developed deep ties with our customers’ key decision makers.
We have a long track record of delivering quality service to MNOs through deeply integrated relationships. Our customers entrust us with this critical infrastructure in part due to our proven record. For example, in our African businesses, we had average power uptimes of 99.7% and average time to repair below 2 hours for the year ended December 31, 2023. In our African businesses, our innovative power availability solutions are a critical component of our quality of service offering in our current markets that lack a robust power grid, as well as in South Africa, where since our entry into the market in 2022 the power grid has experienced significant interruption due to load shedding.
We have a modern and efficient global operational management platform. We have differentiated ourselves from our tower competitors over time through our advanced network operating centers, or NOCs, in our African and Kuwait businesses, excluding Egypt and South Africa, with bespoke remote monitoring at 91% of sites covered by these NOCs as of December 31, 2023 (with monitoring of almost all remaining sites through MNO network operating centers), site acquisition and maintenance teams, and a network of partners in the fields of security, power management equipment, site deployment / construction and diesel supply. Our NOCs operate 24 hours a day, seven days a week and monitor a variety of data sent from our Towers. Such data include access and gate status, diesel supply, usage and quality, cabinet temperature and overall power uptime, consumption and supply. We have demonstrated significant uptime improvement in the sites that we have purchased and enabled improved quality of service levels across our portfolio, other than in South Africa where the power grid experienced significant interruption since 2022 due to load shedding and where we are still transitioning services from third party providers to build our own NOC. Given the current operating environment in Latin America with limited service level agreement obligations (such as power uptime or average time to repair) to customers, our businesses in Brazil, Peru and Colombia generally do not require NOCs or remote monitoring services.
We have a track record of resilience to volatility.
We have a track record of growth during periods of macro-economic volatility, including in relation to foreign exchange rates. Despite Nigerian Naira devaluations and the sustained economic slowdown continuing in Nigeria, with real GDP growth at 2.7%, 3.1% and 3.4% for 2023, 2022 and 2021, respectively, our revenue and segment Adjusted EBITDA for our Nigeria segment has continued to grow during that same period. Revenue for our Nigeria segment increased 2.2%, 17.9% and 10.5% for the years ended December 31, 2023, 2022 and 2021, compared to the years ended December 31, 2022, 2021 and 2020, respectively, and segment Adjusted EBITDA for our Nigeria segment increased by 6.5%, 2.5% and 11.7% over the same periods, despite the Naira depreciating from an average rate of ₦382.0 to $1.00 for the year ended December 31, 2020 to an average rate of ₦638.0 to $1.00 for the year ended December 31, 2023. In particular, the Naira depreciated from an average rate of ₦428.2 to $1.00 for the year ended December 31, 2022 to an average rate of ₦638.0 to $1.00 for the year ended December 31, 2023.
We have a disciplined capital allocation policy. We employ a prudent approach to discretionary capital allocation. We have a strong focus on maintaining a healthy capital structure through a mix of debt and equity financing. As of December 31, 2023, we had $4.1 billion of debt and IFRS 16 lease liabilities and $293.8 million of cash on our balance sheet. We continue to maintain a prudent approach to leverage, which we believe provides us with strong flexibility to evaluate future investment opportunities and other potential capital allocation alternatives, such as debt and/or equity repurchase programs or divestitures.
We have a founder-led, experienced management team with a differentiated operational skillset and track record, that is dedicated to operational best practices.
Our executive team is led by our founders and other seasoned senior executives with strong relevant experience. Our founders remain in lead executive positions and are deeply involved in day-to-day operations, strategy and leadership. We have a highly experienced management team with a track record of delivering operational performance and strategic growth for our business. With a background in site construction, site management as well as site operation, our management team has experience across the full communications infrastructure value chain. We have added to our leadership team over the years, and together, our management team has deep experience in both developed and emerging markets, towers, telecommunications, finance, governance and mergers and acquisitions. In addition to a strong executive management team, we have developed a seasoned team of in-country managers that help run the day-to-day operations, manage local relationships and expand effectively into new markets.
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Our governance and control frameworks underpin our dedication to operational best practices. Since our inception in 2001, we have aimed to establish a rigorous framework, which includes a focus on corporate governance, ethics, environment and sustainability and risk management policies and a platform that combines the strong fundamentals of the communications infrastructure business with attractive long-term growth potential. We review our governance and control frameworks from time to time, which we expect will continue to develop as a result of our continued evolution as a public company and as a result of engagement with investors and stakeholders from time to time.
We have implemented governance practices at the board of directors and executive levels, including committees focused on ethics and risk management. We have nine directors, eight of whom are independent directors, on our board of directors. We have also developed an ethical compliance framework aligned with converging best practice methodologies.
Our Strategy
Since our inception in 2001, we have established a reputation as a leader in the high growth, emerging market communications infrastructure sector, servicing MNOs and ultimately the growing end-consumer market with critical communications infrastructure, which also benefits the broader communities in our markets through enabling accelerated access to communications. Through the growth of 2G, 3G, 4G, and 5G, we have helped the MNOs in our markets provide services to subscribers by owning, operating, sharing and constructing communications infrastructure. We are pursuing the following key strategies to grow our cash flow and continue to take advantage of our competitive strengths:
Increase revenue, improve margins and grow cash flows by maximizing the use of our existing assets and driving organic growth through Colocation, Lease Amendments and New Sites or other communications infrastructure
Our primary strategy is to expand our revenue-generating asset base and improve utilization on new and existing Towers and other communications infrastructure. We aim to drive organic revenue growth and cash flow generation through Colocation, Lease Amendments, contractual lease fee escalations and New Site or other communications infrastructure construction. In addition, we believe strong operating leverage and initiatives, such as selective decommissioning, will help us drive margins and increase cash flows. Moreover, there may be opportunities to expand FTTH fiber services in Brazil and FTTT fiber connectivity services in Nigeria. As our customers roll-out 5G services, we believe these fiber services, as well as existing services such as DAS and small cells and potentially data centers, will likely increase in prevalence, and will become a core component to our growth thesis.
Seek attractive rates of return through disciplined organic and inorganic capital allocation
When feasible, we intend to continue investing capital seeking attractive rates of return. We pursue carefully selected strategies, including New Site or other communications infrastructure construction and selective decommissioning, and have a strong track record of delivering value-enhancing incremental investments that have helped grow our asset base, secure our market leading positions and provide the scale and market share necessary to sustain our growth. We assess acquisition, investment and divestment opportunities using our (i) country attractiveness framework, (ii) strategic importance analysis and (iii) investment appraisal methodologies.
Within existing markets, we focus on growing our scale advantages by acquiring portfolios and other existing tower companies, which offer opportunity for operational improvements, potential synergy realization and potentially decommissioning opportunities, leading to potentially higher returns than comparable standalone investments. Additionally, we assess adjacent components of the communications infrastructure value chain, such as fiber, to be able to offer more infrastructure services to our customers, generate incremental operating synergies across our assets and deliver potentially higher returns.
In new markets, we seek attractive communications infrastructure opportunities with contractual agreements that aim to maximize returns on our investments. We also seek balanced telecommunications market dynamics with service and technology growth opportunities and demand for communications infrastructure services. We consider markets attractive if we believe we can achieve significant scale, and even more so, if we can leverage relationships with multi-national MNOs with whom we may have existing relationships in other markets. If we deem a market attractive, we aim to apply our disciplined approach to acquisitions, establish a path to scale, gain market leadership within that country or more broadly within that region, and diversify our overall portfolio by market and by customer. In contrast, we avoid markets which do not offer chances for meaningful scale or ones that we do not believe have the right fundamental drivers to support our growth strategy.
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In addition to acquiring tower portfolios or seeking to consolidate existing tower companies, we also see the potential for new and related services that will help enhance our value proposition to our customers, reduce their capital expenditure, stabilize their operating costs, help improve their quality of service and enable faster deployment of their networks. We expect to continue to generate cash flows from newly developed service propositions, such as our FTTH and FTTT fiber infrastructure services, where we see significant potential in our markets. We will continually consider opportunities to expand our offering beyond the current infrastructure services, which support MNOs in their intention to build 4G and 5G enabled networks of the future, notably with small cells in urban areas and DAS. We believe that there are opportunities to expand the types of infrastructure partnerships that we could form with our customers, such as investments in Internet-of-Things or edge computing, which could fall within our investment criteria, our infrastructure focus and our business model. We are committed to anticipating and responding to new technology trends and evolving customer needs.
Our investment appraisal of inorganic opportunities includes targeting long term financial metrics to form the basis of our investment appraisal as well as assessing inorganic opportunities for individual strategic merit. In addition, we remain open to potential divestments that align with our capital allocation policy and meet our return-on-investment requirements.
Peru Share Purchase Agreement:
On February 21, 2024, IHS entered into a Share Purchase Agreement to sell its subsidiary, IHS Peru S.A.C., to affiliates of SBA Communications Corporation. Closing of this transaction remains subject to customary conditions, including finalization of due diligence.
Our Peru footprint consists of 61 towers.
Continued focus on operational excellence, service delivery for customers and adopting an innovative approach to new technology
We plan to continue delivering high levels of performance to our customers in terms of site power availability, site access, equipment monitoring and servicing. We have done this consistently for years and we are increasingly looking to leverage new technology such as artificial intelligence (AI), albeit in early stages, to expand the scope of how we monitor and improve the sites while reducing our dependence on diesel-powered generators. Our extensive use of alternative power solutions in our African markets also helps reduce our operating costs and is more environmentally friendly given the reduction in diesel consumption that these solutions deliver. We will also look to leverage this expertise in other markets in which we operate where services such as power or site monitoring may be requested from customers in the future.
In support of these goals, in 2022, we published our Carbon Reduction Roadmap which provided a comprehensive strategy for decreasing our emissions, including a goal to reduce the Scope 1 and Scope 2 kilowatt-hour emissions intensity of our tower portfolio by 50% by 2030, using 2021 emissions data as the baseline. Under Project Green, the next significant step of our Carbon Reduction Roadmap, we expect to achieve emissions and financial savings by connecting more sites to the electricity grid and via the deployment and integration of battery storage and solar panel solutions. In scope for Project Green are our operations in Cameroon, Côte d’Ivoire, Kuwait, Nigeria, Rwanda, and Zambia. In 2023, we updated 2,750 sites through a combination of connecting them to the electricity grid, deploying or upgrading battery storage and deploying or upgrading solar panel solutions, which reduced our diesel consumption.
Enhancing our impact on our communities and on the environment
Our business model is designed to be more sustainable than various alternatives given we promote infrastructure sharing, drive connectivity across our markets and have invested in hybrid power solutions that reduce operational greenhouse gas (GHG) emissions. Additionally, we continuously aim to improve and develop our Sustainability strategy, which focuses on four pillars: (i) environment and climate change; (ii) education and economic growth; (iii) our people and communities; and (iv) ethics and governance. By supporting local schools, education initiatives, health clinics and wider programs, such as improving rural telephony, we seek to make a positive impact in the communities in which we operate and further contribute to the growth and development of our markets.
IHS Towers is a UN Global Compact signatory and is committed to adhering to the “Ten Principles” of the UN Global Compact relating to human rights, labor standards, environment and corruption. We believe that our sustainability programs contribute to nine of the 17 United Nations Sustainable Development Goals, or UN SDGs.
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Each of these goals feeds into our four-pillar sustainability strategy, which guides our everyday performance and underpins our business.
The impact of our Sustainability strategy continues to be recognized externally. In 2023, IHS Nigeria won five awards at the 2023 Sustainability, Enterprise, and Responsibility Awards Africa CSR and Sustainability Awards. The awards received were ‘Most Responsible Organization’, ‘Best Company in Environmental Stewardship’, ‘Best Company in Circular Economy’, ‘Best Company in Workplace Practices’ and ‘CEO of the Year’ for Mohamad Darwish. In addition, IHS Nigeria's sustainability programs were recognized at the 2023 Africa Public Sector Conference and Awards; Top 50 Brands on Sustainability in Africa; 2023 World Sustainability Awards; Best External Partnership; 2023 Tech Innovation Award as Best Sustainable Tower Company; 2023 CSR Reporters' Award for Sustainability Company of the Year; CAHR Awards for Josephine Nkemdilim Equal Rights; and the SOS Children’s Villages International (SOSCVI) Donor Award.
Our Tower Portfolio
Size of portfolio As of December 31, 2023, we had a portfolio of 36,079 owned Towers and 3,996 Towers that we operate under MLL and ROU arrangements totaling 40,075 Towers owned and operated. With 59,727 Tenants as of December 31, 2023, we had a Colocation Rate of 1.49x. Additionally, as of December 31, 2023, we had 36,603 Lease Amendments. We have historically increased the number of our Towers through a combination of constructing New Sites, along with the acquisition of site portfolios from MNOs and from independent tower companies, namely HTN Towers, CSS, Skysites, Centennial, and GTS SP5.
In connection with the acquisition of multiple portfolios of Towers and in other circumstances, we have also rationalized our portfolio through decommissioning, including the ongoing rationalization program agreed with a Key Customer in Nigeria. Where economically and commercially viable to do so, we migrate Tenants from one Tower onto a nearby Tower as additional Colocation and then decommission the empty site. While the decommissioning of Towers offsets our overall growth in the number of Towers, it allows us to eliminate cost of sales and ongoing maintenance capital expenditures of the decommissioned tower with only a marginal cost of sales increase at our retained sites through increased power consumption.
The following table shows the growth of our tower portfolio, which is primarily a result of acquired Towers and the construction of New Sites, for the period and as of the dates indicated:
|
|
|
||||
|
|
As of December 31, |
||||
|
|
2021 |
|
2022 |
|
2023 |
Towers |
|
|
|
|
|
|
Total (Owned & Operated) |
|
31,043 |
|
39,652 |
|
40,075 |
Acquired in period |
|
2,179 |
|
7,849 |
|
118 |
Built in period |
|
1,348 |
|
1,184 |
|
1,329 |
In addition to the foregoing owned and operated Towers, we also manage and operate approximately 121 Towers in Kuwait under a Managed Services agreement as part of the Kuwait Acquisition.
Tenancies and Colocation Rate
We provide our customers with opportunities to install active equipment, and receive related services, on existing Towers alongside current Tenants, known as Colocation. The Colocation Rate is the average number of Tenants per Tower that we own or operate across our portfolio at a point in time. With 59,727 Tenants as of December 31, 2023, we had a Colocation Rate of 1.49x.
Our Colocation Rate is an important metric for assessing utilization and capacity on existing Towers, as well as potential for future growth. Our Colocation Rate is a key driver of our gross margins and operating margins, as the addition of further Tenants to existing Towers increases revenue while only marginally increasing our costs (primarily power). Colocation is attractive to our customers, as it provides them with shorter deployment times for their equipment compared to New Site construction arrangements.
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The following table shows the number of Tenants in our portfolio and our Colocation Rate as of the dates indicated:
|
|
|
||||||||
|
|
As of December 31, |
||||||||
|
|
2019 |
|
2020 |
|
2021 |
|
2022 |
|
2023 |
Tenants |
|
|
|
|
|
|
|
|
|
|
Key Customers |
|
34,092 |
|
38,739 |
|
42,843 |
|
54,215 |
|
55,915 |
Other Customers |
|
3,560 |
|
4,125 |
|
3,571 |
|
4,358 |
|
3,812 |
Total |
|
37,652 |
|
42,864 |
|
46,414 |
|
58,573 |
|
59,727 |
Colocation Rate |
|
1.56x |
|
1.54x |
|
1.50x |
|
1.48x |
|
1.49x |
We review and analyze the performance of our Colocation Rate trends for Towers built or acquired in different periods. As of December 31, 2023, our tower vintages up to 2012 had an average Colocation Rate of 2.27x, while our more recent portfolios ranged from 1.26x to 1.69x. This metric can be affected by recent acquisitions and consistent New Site programs, each of which can reduce the overall Colocation Rate and make total portfolio comparisons less meaningful. However, we believe the relatively low Colocation Rate provides strong growth potential going forward. The table below shows our Colocation Rate, as of December 31, 2023, for Towers acquired or built during different periods (with towers acquired through company acquisitions captured in the acquisition year):
|
|
|
|
Colocation Rate |
|
|
Number of Sites |
|
As of December 31, |
Period |
|
Acquired / Built |
|
2023 |
Up to 2012 |
|
1,338 |
|
2.27x |
2013 — 2014 |
|
11,594 |
|
1.67x |
2015 — 2016 |
|
7,926 |
|
1.54x |
2017 — 2018 |
|
1,415 |
|
1.69x |
2019 — 2020 |
|
9,624 |
|
1.26x |
2021 — 2023 |
|
8,178 |
|
1.30x |
Total |
|
40,075 |
|
1.49x |
The Colocation Rate of our Towers is a key indicator of portfolio maturity and operational efficiency.
Lease Amendments
In addition to Colocation, we also continue to benefit from Lease Amendments as our existing Tenants roll out new technologies or require installation of additional equipment or ancillary services on their existing sites, which includes the deployment of 3G, 4G and 5G technologies. As of December 31, 2023, our customers had deployed over 36,500 Lease Amendments to Towers across our footprint. Given the relative growth potential of the telecommunications markets in which we operate, where 3G and 4G SIM penetration are generally at a low starting base (e.g. 65% and 20%, respectively in Nigeria as of December 31, 2022), the majority of the Lease Amendments that we have added thus far are for 3G and 4G equipment added to a Tower for existing Tenants, albeit in 2023, 5G equipment made up the majority of our Lease Amendments.
The following table shows the number of Lease Amendments in our portfolio as of the dates indicated:
|
|
|
||||||||
|
|
As of December 31, |
||||||||
Lease Amendments |
|
2019 |
|
2020 |
|
2021 |
|
2022 |
|
2023 |
Total |
|
13,604 |
|
17,983 |
|
27,124 |
|
31,674 |
|
36,603 |
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Tower Specifications
The following diagram illustrates the standard facilities located on our typical ground-based tower sites in our African and Middle East markets:
The antennas, microwave dish and the active equipment inside or outside of the shelter are owned and maintained by the customers, while we own and maintain the passive infrastructure, including the mast, the shelter, the site monitoring system, and, if applicable, the diesel generator, the battery backup system or the hybrid power solutions, which include solar and battery systems. The site land is generally leased from a land owner or purchased by us. See “— Real Property Leases.” In Latin America and South Africa, the supply of primary power is typically the responsibility of the operators, who have either a grid connection or their own power supply for the site.
The number of antennae that a Tower can accommodate varies depending on the type of Tower (self-supporting monopole, guyed or self-supporting lattice), the height of the Tower, the nature of the services provided by such antenna and the antenna size and weight. The substantial majority of our Towers are self-supporting lattice Towers that can support a large number of antennae, which therefore enables us to market tower space to a diverse group of telecommunications providers and other customers. Ground-based Towers can typically accommodate three or more Tenants. The key criteria in determining how many Tenants the Tower can hold is the wind loading capacity of the Tower. The capacity of a single Tower can be increased by Tower strengthening and height extensions and by adding further antenna mounting poles. The structure of the Tower can be reinforced and the foundation strengthened to accommodate additional Tenants and Lease Amendments.
Our Tower portfolio consists principally of ground-based Towers. As of December 31, 2023, 58% of our Towers were between 30 and 60 meters in height, and 31% of our Towers were smaller than 30 meters, including 13% of which were rooftop sites. We build larger Towers when circumstances require, including when Towers will be located in valleys or require a greater range of transmission. As of December 31, 2023, 8% of our Towers are between 60 and 75 meters, and 3% are taller than 75 meters. As of December 31, 2023, the average age of Towers in our portfolio based on our date of integration was 6.9 years.
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Operations
Our core business provides shared communications infrastructure services to MNOs, including power management, to ensure uninterrupted operation of customers’ transmission equipment. MNOs, in turn, use our tower infrastructure to provide wireless voice and data services to their end users. We lease space to customers on existing Towers alongside current Tenants, known as Colocation, as well as lease additional space for the installation of additional equipment or provide additional services to existing Tenants on Towers through Lease Amendments. We commission New Sites for construction to the MNOs’ specifications and lease space on those newly built Towers. In certain of our markets, we also provide customers with the required power for their equipment and provide FTTT services.
Colocation
Colocation is at the core of our business model as it allows us to leverage existing Towers to grow revenue and improve operating margins. We believe that our current tower portfolio and our experience of operating large portfolios of Towers, coupled with our strong customer relationships, will help us to capitalize on expected market growth and Colocation opportunities.
A typical Colocation process usually involves the following steps:
| ● | New customers typically sign an MLA, which governs our relationship with the customer. |
| ● | We work closely with our customers, sharing our updated tower portfolio location details throughout the year, and particularly during the planning phase, to maximize the number of Colocation opportunities. We also have radio frequency planning teams that work with customers with regards to the planning and optimization of their networks. |
| ● | Upon determining to lease tower space for Colocation, the customer delivers a work order requesting us to reserve specific space on a specific Tower. Once the work order has been processed and the tower space is ready for integration (typically approximately 30 days), we issue a notification to the customer, who confirms acceptance of the site. |
| ● | Under certain of our MLAs, an SLA is then signed for the commissioning of the Colocation of each specific Tower, incorporating the provisions of the MLA, and the first invoice is then submitted. |
| ● | The accrual of lease fees depends on the MLA, and usually begins approximately 30 days after notification that the site is ready for installation, or when the tenant installs or activates its equipment. |
| ● | Subsequent invoicing depends upon the particular MLA, and in most cases occurs monthly or quarterly in advance. |
Lease Amendments
In addition to Colocation, we drive our revenue and operating margins by leasing additional space for equipment or providing certain ancillary services to existing Tenants on sites through Lease Amendments. For example, an existing Tenant may choose to deploy an additional technology, such as 3G, 4G or 5G technology at the same site the Tenant is leasing, or an existing Tenant may seek to connect fiber to the Tower, which requires the provision of additional power for that connection.
Our customers utilize different technologies, though active GSM technologies comprise the most prevalent type of technology on our Towers to date. Data demands continue to be a key factor in our markets and certain large MNOs have recently been upgrading their 4G networks and/or have already begun deploying 5G networks. These technologies require increased density for Towers and equipment, increasing the need for additional points of service and amplifying the need for Lease Amendments.
As subscriber density increases, tower operators deploy additional infill sites to deliver further capacity to areas of demand. This densification of the network is driven further by the deployment of 3G, 4G and 5G services, which are typically carried over higher frequency spectrum bands. The cell-sizes for these higher frequency bands are much smaller than, for example, a GSM 900 MHz cell, but the capacity that is delivered over a similar area is much higher and can therefore support high subscriber density and deliver higher voice and data traffic. The deployment of 3G/4G in lower frequency bands does not negate the need for densification, as it allows 3G and 4G coverage to be extended into more rural areas similar to 2G coverage. We expect MNOs in our markets to continue to service 2G, 3G and 4G technologies for many more years.
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New Sites
We believe that the timely deployment of New Sites, which includes site acquisition, construction and structural and electrical engineering, has been a critical component in obtaining and completing site orders. We have extensive New Site deployment experience, having built over 10,000 New Sites and have been a major provider to the market in New Sites since 2011. The average cost to build a typical macro New Site as of December 31, 2023 is in the range of $50,000 to $110,000 in our African and Middle East businesses, and in the range of $40,000 to $80,000 in our Latin America business.
New Sites constructed consist primarily of ground-based towers, but can also include in-building solutions, rooftop and wall-mounted towers and cells-on-wheels. For New Sites, we retain ownership as well as the exclusive right to colocate additional Tenants on the tower. These New Sites always begin operations with at least a single tenant, with Colocation and Lease Amendments expected at future dates. We seek to construct New Sites only in locations where Key Customers are committed to be the initial tenant with optimal additional Colocation capacity, and therefore generally aim to only build Towers for customers in locations that have the potential to attract other customers. We strive to realize the operating leverage inherent in the tower business by leasing up the New Sites with additional tenancies. In Africa (excluding South Africa) and the Middle East, we aim to construct New Sites with the appropriate primary power systems for their location, which may include hybrid batteries and solar systems. In South Africa, we provide back-up power solutions as connection to the grid is the primary source of power. See “— Power and Power Management.” Given the operating model in Latin America, power systems are less relevant in these markets where the provision of power is a responsibility of the customer.
The entire process from receipt of work order to completion of New Site construction as of December 31, 2023 typically takes approximately 90 to 150 days. The actual time taken and the detailed steps followed can vary depending on the country, customer, the location of the specific site and issues, if any, identified during the site acquisition process.
A typical New Site process, including additional value-added services, involves the following steps:
| ● | A new customer will sign an MLA, or have an existing MLA with the relevant optionality to roll-out New Sites, and inform the marketing unit that it requires a New Site in a certain location (usually a location within a radius of a precise coordinate, referred to as a search ring; in dense urban areas the search ring is generally within 200 meters of the coordinate but in other areas, the search ring can be up to 500 meters from the coordinate) |
| ● | Mapping specialists select the most suitable sites based on a number of factors, including (i) the proximity to central coordinates provided by the customer, (ii) appropriate terrain most suited to broadcasting of uninterrupted signals, (iii) which sites provide the most attractive property lease or purchase terms, with a preference for purchasing the land, (iv) which sites have the highest potential to be approved for aviation and environmental permits in the shortest time frame and (v) which sites may be the most viable location for additional Tenants. Final sites selected are submitted to the customer and, once approved, to our site acquisition department. |
| ● | Once a location is accepted by the customer, we negotiate and enter into either (i) a long-term ground lease pursuant to which we acquire a leasehold interest in the property, (ii) a contract of sale pursuant to which we acquire title to the property, or (iii) an easement agreement pursuant to which we acquire an easement over the property. We may also negotiate an option to purchase or lease the property in the future. Concurrent with the negotiation of appropriate property rights, we obtain a title report on the site, conduct a survey of the site, perform soil analysis of the site and obtain an environmental survey of the site (if relevant). The resultant plan is then submitted to the relevant regulatory authority for approval. We also obtain land use permits necessary to commence construction on the site or install equipment on the site. |
| ● | Upon the customer’s acceptance of the completion of the tower construction, under certain MLAs, a separate SLA is then signed for the commissioning of the individual site, which incorporates the provisions of the MLA. |
The accrual of the lease and maintenance fees generally starts at the time of the customer’s acceptance of the completion of the tower construction. Subsequent invoicing depends on the particular MLA but generally commences within 30 days of the customer’s acceptance or delivery of the site.
Decommissioning sites
Historically, we have grown our portfolio through constructing New Sites, along with the acquisition of site portfolios from MNOs and independent tower companies. As a result of acquisitions of multiple tower portfolios in the same markets, we often have multiple Towers in close proximity to each other. If it is economically and commercially viable to do so, and if agreed to by the tenant, we migrate Tenants from one Tower onto a nearby Tower as additional Colocation and then decommission the empty site.
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In other circumstances, we may selectively decommission sites of existing customers, including the ongoing rationalization program agreed with a Key Customer in Nigeria. While the decommissioning of Towers offsets our overall growth in the number of Towers, it allows us to eliminate duplicative cost of sales and ongoing maintenance capital expenditures of the decommissioned tower with only a marginal cost of sales increase at our retained sites through increased power consumption. We aim to continue working with our customers to determine if we can improve our service offerings through further decommissioning.
Site management and maintenance
We deploy a combination of in-house personnel and third-party contractors to manage and maintain our Towers. In-house personnel are responsible for oversight and supervision of all aspects of preventative and corrective maintenance and site management, including managing the operational aspects of customer relationships, managing structural engineering and tower capacity issues, ensuring proper signage, and supervision of independent contractors. We engage numerous suppliers to provide various services in connection with site acquisition, construction, access management, security and preventative and corrective maintenance of tower sites, as well as the supply of diesel to certain of our sites. As of December 31, 2023, we had entered into outsourcing arrangements for certain services in respect of 80% of our sites.
For example, we have outsourced power management, refurbishment, operations and maintenance and security functions at some of our sites to third-party contractors. These power management functions include the supply of diesel to certain sites and deployment of alternative power technologies that we configure and design, such as hybrid and solar power technologies, on certain sites, to help reduce diesel consumption to a contracted volume. Third-party contractors providing material operational services are subject to strict contractual execution targets for both financial and operational performance. By entering into these agreements, we are able to ensure the proper functioning of our sites and fix our costs by setting maximum costs per site (subject to typical inflation escalation) with the third-party contractor providing the services. In addition to the service level agreements that need to be maintained, outsourcing to contractors allows us to budget more effectively.
Site maintenance and management activities include:
Site monitoring and control
Our NOCs are 24-hour fully operational management centers from which our personnel monitor and control the tower sites from a central location. Remote monitoring systems allow us to better monitor, regulate and control site conditions, including, among other things, site AC, DC, load, power consumption per tenant, diesel usage and tank levels, environmental alarms (shelter temperatures, smoke detectors, etc.) and remote access control. We have remote monitoring systems installed in six of our eleven markets covering 91% of our sites within these six countries (with monitoring of almost all remaining sites through MNO network operating centers). Our NOCs are operated 24 hours a day, seven days a week and monitor a variety of data sent from our Towers. Such data includes access and gate status, diesel supply, usage and quality, cabinet temperature and overall power uptime, consumption and supply. In South Africa, we currently rely on a transitional third party operations support system but expect to establish our own NOC in the market in 2024. Given the current operating environment in Latin America and no provision of service levels to customers, our businesses in Brazil, Peru and Colombia do not require NOCs.
The activities conducted in the NOCs ensure that we provide our customers with quality service and uptimes. We averaged a power uptime of 99.7% (excluding South Africa) across our tower portfolio in our African markets for the year ended December 31, 2023, with an average mean time to repair of under 2 hours for the year ended December 31, 2023.
Security
The protection of our sites is key to ensuring the sustainability of our business. We ensure that our Towers generally have fencing and security lights and, where relevant, such as in our African markets, some of our sites are guarded by outsourced security guards. We apply rigorous access control policies at the sites and require each visitor to be pre-approved with customer representatives. Our remote monitoring systems also allow us to track all access to restricted areas on the sites.
Power and Power Management
The reliability of main grid electricity varies considerably across our footprint and determines, along with the requirements of any one site, the most appropriate power system for that site. Specifically in our African markets where there can be a lack of reliable main grid electricity supply, we currently source a substantial amount of our power needs for daily operations from a combination of diesel generators, solar panels, and deep cycle batteries.
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As of December 31, 2023, in our African markets (excluding South Africa), 48% of our sites were powered with hybrid power systems (a combination of diesel generators with solar and / or battery systems), 12% with only generators, 32% with grid connectivity and back-up generators, with the remaining 8% powered through only grid connectivity or solar power and other systems. As of December 31, 2023, 9,793 of our sites in Africa, excluding South Africa, had solar power solutions, representing 40% of our African Tower portfolio (excluding South Africa). We, or third-party contractors we have engaged for certain sites, are responsible for monitoring the diesel levels of our generator tanks and scheduling diesel deliveries. Given the importance of diesel for the operation of our sites in many of our African markets, we may purchase diesel in large quantities, which is then stored at our facilities. In Latin America, South Africa, and Kuwait our sites are typically powered by grid solutions, with back-up power systems in certain instances.
To address the costs associated with diesel generator usage and maintenance in our African markets (excluding South Africa), we deploy as practicable hybrid battery power systems, which involve alternating between power storage sources, such as batteries (VRLA and lithium ion) and diesel generators. On certain sites, we have also switched from using 3-phase AC generators to DC generators or single phase generators, which consume less diesel. We also deploy hybrid solar power systems on certain sites. We continuously evaluate innovative power management technologies and solutions, including more efficient generators, hybrid battery systems and solar systems. We outsource certain services, including power management and site maintenance for certain of our sites, which includes over 9,000 sites in Nigeria where we had deployed hybrid power systems, prior to Project Green. These systems use batteries and/or solar power systems, along with traditional generators, to reduce fuel costs and create a more consistent energy supply to increase network uptime for our customers. In Nigeria, the deployment of these power management solutions resulted in, on average, an approximately 50% reduction in diesel consumption per tower at the time of deployment on more than 7,400 sites where we had deployed hybrid power solutions, which included solar power.
Under Project Green, the next significant step of our Carbon Reduction Roadmap, we continue to connect more sites to the electricity grid and via the deployment and integration of battery storage and solar panel solutions. In scope for Project Green are our operations in Cameroon, Côte d’Ivoire, Kuwait, Nigeria, Rwanda, and Zambia. In 2023, we updated 2,750 sites through a combination of connecting them to the electricity grid, deploying or upgrading battery storage and deploying or upgrading solar panel solutions, which reduced our diesel consumption.
Given the reliable grid connectivity in our Kuwait and Latin America markets and power pass through nature of most customer contracts in Kuwait, power management is less of a focus in these markets.
Replacement and maintenance of power systems forms a significant part of our annual maintenance capital expenditures, which are in the range of $2,000 to $6,000 per Tower per year as of December 31, 2023 in our African and Middle East businesses. Given the different power environment in our Latin America business, annual maintenance capital expenditures are currently less than $500 per tower per year.
Fiber Services
In certain of our markets, we have begun providing certain fiber services, including the deployment and operation of fiber access networks and infrastructure. In Brazil, through our I-Systems subsidiary, we deploy and operate a fiber infrastructure that is primarily rented to TIM Brasil (as anchor client) and other customers, for their provision of residential broadband services to consumers, which is referred to as a Fiber-to-the-Home (“FTTH”) network. As part of the transaction that formed I-Systems, we inherited a legacy Fiber-to-the-Curb (“FTTC”) network that is also being upgraded to FTTH. I-Systems is responsible for the deployment of the relevant fiber node as well as the secondary fiber network connected to that node, including the fiber drop at a consumer’s premises. I-Systems is also responsible for the ongoing management and maintenance of that fiber network. As of December 31, 2023, the I-Systems network covers approximately 8.8 million homes passed (of which approximately 5.8 million are FTTH) and spans approximately 23,700 route kilometers. In certain of our African markets, we also provide Fiber-to-the-Tower (“FTTT”) services, where we deploy fiber to towers that we own or operate and sell capacity to our customers to generate revenue.
Customer Lease Agreements
We lease space on Towers to our customers pursuant to a combination of MLAs, which provide the commercial terms governing the lease of tower space, MLL agreements, and individual SLAs, where relevant, which act as an appendix to the relevant MLA, and include site-specific terms for each relevant tower.
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Customer lease agreements, whether long-term lease agreements, master tower space use agreements or other MLAs such as Managed with License to Lease Agreements, or MLLs, are the principal agreement between the customer and us. These govern the ongoing and long-term customer relationship and provide the commercial terms governing the lease of tower space. As of December 31, 2023, the average remaining length of our MLAs was 6.7 years. An MLA typically has an initial term of 5 to 10 years and will stay in effect until the parties renew or sign a new tower lease agreement. When we acquire portfolios of towers we typically sign an MLA with a minimum duration of 10 years. A number of the MLAs with our customers are deemed automatically renewed if the customer does not notify us of their intention to not renew before the stated expiration date. The material commercial terms of our MLAs are typical for the tower infrastructure industry in our markets and include contractual provisions setting out, among other things, pricing, renewal clauses, termination clauses, inflation-linked price escalations and, in certain cases, provisions designed to mitigate foreign exchange risk.
In addition to the other types of MLA described above, we also operate sites owned by an MNO through Managed with License to Lease Agreements. Where there is an MLL agreement, we have the right to lease out space on the tower to other MNOs and provide services, generating further revenue for us. The site owner reduces its operating costs, eliminates capital expenditures and frees up management time.
Our MLL agreements typically have a term of 15 years and can typically be renewed for a five-year period. Our two current MLL Agreements also grant the Tenant the option to withdraw from five sites per year, not to exceed 50 sites across the full term, and provided there is no other Tenant on each site. As of December 31, 2023, the average remaining duration of our two MLL agreements was 4.5 years and the total number of Tenants on sites operated under MLL agreements is approximately 3,826.
The table below outlines collectively the typical key contract terms of our customer lease agreements with our Key Customers as of December 31, 2023:
|
|
|
|
Weighted Average |
|
|
|
|
|
|
Remaining |
|
|
|
|
|
|
Duration |
|
|
|
|
|
|
of |
|
|
|
|
|
|
Current |
|
Extension |
Country |
|
Duration of MLA |
|
Term |
|
Option |
Nigeria* |
|
5 – 15 years |
|
5.1 years |
|
5 years extendable terms |
South Africa |
|
5-10 years |
|
7.2 years |
|
5 –10 years extendable terms |
Côte d’Ivoire** |
|
10 – 15 years |
|
7.0 years |
|
5 years extendable terms |
Cameroon*** |
|
10 – 15 years |
|
6.8 years |
|
10 years extendable terms |
Zambia |
|
10 years |
|
0.9 years |
|
3 – 5 years extendable terms |
Rwanda |
|
10 years |
|
1.7 years |
|
3 – 5 years extendable terms |
Brazil, Peru and Colombia**** |
|
5 – 20 years |
|
11.9 years |
|
5 – 20 years on a site by site basis |
Kuwait |
|
10 years |
|
6.1 years |
|
5 years extendable terms |
*In February 2024, signed and expanded a contract with Airtel Nigeria until December 2031.
**In December 2023, we signed a contract with MTN Côte d’Ivoire until April 2033.
***In March 2023, we signed a contract with MTN Cameroon until March 2033.
****Includes I-Systems, with remaining MLA term weighted by OLTs
For the year ended December 31, 2023, 40% of our revenue was linked to the U.S. dollar, 10% of our revenue was linked to the euro and 10% of our revenue was linked to the cost of power through power indexation or power pass-through clauses. However, the manner in which these revenues are linked differs by lease agreement. The U.S. dollar-linked contracts with U.S. dollar revenue components typically have a formula for determining the U.S. dollar to local currency exchange rate over a period of time. For example, for the majority of MLAs in Nigeria, the U.S. dollar component of the monthly lease fee is converted to Naira for settlement at a fixed conversion rate for a stated period of time. The conversion rate in such MLAs is reset after a period of one month, three months, six months or a maximum of 12 months. Of our 40% of revenue linked to the U.S. dollar for the year ended December 31, 2023, 4% reset on a monthly basis, 94% reset on a quarterly basis and 2% reset on a semi-annual basis. While we reached agreement in 2020 with our Key Customers in Nigeria to update the reference exchange rate in our contracts to the prevailing market rate available on Bloomberg (which has typically been aligned to the NAFEX and NAFEM rates) historically, the conversion rates included in some of our MLAs was different to the rates at which our financial results have been translated into U.S. dollars for reporting purposes.
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For example, as described under Item 3.D. “Risk Factors — Risk Relating to our Business — The existence of multiple foreign exchange markets with different exchange rates may impact the rate at which our operating subsidiaries’ financial results are translated into U.S. dollars for group reporting purposes, which may impact our financial condition and/or results of operations,” in April 2017, the CBN introduced a new foreign exchange window for investors and exporters (the I&E window (now referred to as NAFEM), from which the NAFEX rate is also derived) that resulted in the conversion rates for our MLAs for our Nigerian operations to be different from the rates at which our financial results were translated into U.S. dollars for reporting purposes. Historically, our financial results in Nigeria were translated into U.S. dollars based on rates more reflective of the NAFEX rate, which differed from the rates included in some of our MLAs until the amendments to the contracts with certain of our Key Customers in Nigeria to update the reference exchange rates therein to the prevailing market rate available on Bloomberg. Currently, we use the USD/NGN rate published by Bloomberg, which is approximately aligned to the NAFEM window rate, for reporting purposes. Certain of our other contracts in Rwanda and Zambia also have portions that are linked to the U.S. dollar while certain of our other contracts, such as in Côte d’Ivoire and Cameroon, are linked to the euro because they are based on local currencies that are “pegged” to the euro. In South Africa, Kuwait and Latin America, our MLAs are based on local currency pricing with no direct foreign exchange link or conversion mechanism. See also Item 3.D. “Risk Factors — Risks Relating to Our Business — We and our customers face foreign exchange risks, which may be material.”
We also benefit from power indexation and power pass-through clauses in some of our MLAs. Such power indexation clauses provide pass-through provisions in relation to increased diesel prices. For example, in certain MLAs where there is a certain percentage increase or decrease in the per liter price of diesel above or below an agreed base price, such percentage increase or decrease is also applied to a portion of the full monthly lease fee. Some of our MLAs also have power-pass through clauses, where the cost of electricity charged by a utility provider is passed through to the customer. These provisions help us mitigate exposure to volatility in power costs including diesel prices. For the year ended December 31, 2023, 10% of revenue was linked to the cost of power through power indexation or power pass-through clauses.
Except for certain material events of default, our MLAs may only be terminated prior to the agreed termination date according to the agreed notice period. As a result, we believe that revenue earned from lease fees provide a highly visible and recurring revenue stream. As of December 31, 2023, the average remaining length of our MLAs was 6.7 years, with an average remaining lease term of 7.5 years.
While a number of the MLAs with our customers are deemed automatically renewed if the customer does not notify us of their intention to not renew before the stated expiration date, we regularly keep upcoming renewal or expiry dates under review, and engage in discussions with customers from time-to-time regarding such matters. For instance, MLAs with certain customers in Nigeria, Rwanda and Zambia are up for renewal in 2024 and MLAs with certain customers in Rwanda, South Africa and Zambia are up for renewal in 2025. Though we have had recent exceptions with respect to a select number of sites (See Item 3.D. “Risk Factors — Risks Relating to Our Business — We may experience the loss of tenancies and/or customers, and are exposed to the loss of revenue from the failure or acquisition of any customer or customer consolidation") we expect that our MLAs and MLLs will generally experience a high renewal rate because (i) the locations of many of the Towers are critical to the efficient and cost effective operation of the Tenants’ telecommunications networks, (ii) there are cost and time implications to our customers associated with re-configuring antenna equipment across multiple towers when relocating, (iii) there are often limited alternative sites and other operators within a required proximity, and (iv) there are site acquisition, regulatory compliance issues and other barriers associated with the construction of New Sites and the relocation of antenna equipment.
Site Lease Agreements
In addition to the MLA, where a customer requests new space for additional Colocation or New Sites, pursuant to some of our existing MLAs, we sometimes also enter into one or more SLAs with that customer, which include certain site-specific arrangements. The tenure of an SLA varies between 5 and 10 years depending on the length of the underlying MLA and sometimes includes additional terms as may be commercially agreed. The material commercial terms will be agreed in the relevant MLA, with the SLA including site-specific terms such as equipment loading.
Renewals of SLAs are generally linked to the extension of the term of the related MLA.
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Lease Fees
Lease fees for the services we provide are normally invoiced to Tenants in advance or arrears on a monthly or quarterly basis. The average lease fee received from a new tenant is generally fixed for the initial term of the MLA or MLL, which generally include an annual inflation-linked escalation, and cover:
| ● | Power requirements; |
| ● | Amount of ground and tower space that the Tenants’ equipment and specifications require, including the size of the tenant’s antenna equipment located on the tower and the ground space necessary for the tenant’s electronic and other equipment related to the antenna; and |
| ● | Site location. |
For certain customers, we also charge lease fees on the basis of the type of technology employed by the customer, which includes a defined amount of space and power as necessary for such technology. In most cases, additional fees may be invoiced if such customers require additional space and/or power in excess of these specifications, subject to the terms of the relevant MLA.
Managed Services
For sites that we do not own but operate on behalf of another party, such as an MNO, we provide Managed Services. Managed Services include providing all aspects of preventative and corrective maintenance and site management. We provide our customers with Managed Services through a combination of in-house personnel and third-party contractors.
In South Africa, as a result of the MTN SA Acquisition, we also provide power Managed Services regarding back-up power to a number of sites.
In Kuwait, approximately 121 sites that we have not purchased from Zain Kuwait are managed and operated by us under a Managed Services agreement.
Real Property Leases
Most of our sites are located on real property which has been leased to us by individual landowners under ground lease agreements. As of December 31, 2023, approximately 89% of our Towers were on leased property. See Item 4.D. “Property, Plant and Equipment.” Most of our real property leases have durations of 3 to 15 years, and in Kuwait a certain number of our leases with local cooperatives tend to be for one year. The table below shows the number of sites we lease for our Towers and the average lease duration, by country, as of December 31, 2023.
|
|
|
|
Weighted Average |
|
|
Number of |
|
remaining |
|
|
leases |
|
duration |
Nigeria |
|
13,415 |
|
8.2 |
South Africa |
|
5,691 |
|
6.1 |
Côte d’Ivoire |
|
2,637 |
|
3.6 |
Cameroon |
|
1,719 |
|
3.3 |
Zambia |
|
1,632 |
|
4.5 |
Rwanda |
|
1,223 |
|
6.2 |
Brazil, Peru and Colombia |
|
7,665 |
|
17.3 |
Kuwait |
|
1,503 |
|
2.5 |
Total |
|
35,485 |
|
8.7 |
The ground lease contracts that we enter into vary across our markets in terms of the contract structure, tenor and payment frequency. In most of the African markets in which we operate (excluding South Africa), ground lease fees are generally paid in advance, for a one, five, or ten-year portion of the overall duration of the lease, with typically pre-agreed lease fee increases of between 3% and 60% for each subsequent three, five or ten-year period. In our South Africa business where we also have multi-year ground lease contracts, we typically pay our ground leases fees monthly in advance. Since advance payments for ground lease fees typically represent a substantial rental yield for the landlord, in our experience, ground leases are, in most cases, not difficult to obtain or renew.
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In our Latin American businesses, the lease costs are typically paid monthly in arrear and passed through to the customers.
Our ground leases are typically renewed between three and 12 months prior to expiration. If terminated by the landlord, the unearned portion of the rent is typically reimbursed to us. In the last few years, we have sought to purchase the freehold interest in the tower site land rather than maintain the lease interest. As of December 31, 2023, we own the land for 9% of our sites.
Sales and Marketing
We aim to generate additional Colocation and Lease Amendments through actively promoting tower sharing in our markets. We offer the largest portfolios in many of the countries in which we operate and use our experience and expertise to enable our customers to broaden their range of network leasing options. Our sales and marketing team is in regular discussions with customers to identify whether our existing Towers can fulfill new tenancy demand, or if the customers may require a New Site. In many cases, customers prefer a Colocation option due to a faster time-to-market advantage. However, our expertise in site acquisition, construction, and structural and electrical engineering, as well as regulatory compliance, has been a critical component in obtaining and completing New Site orders on time and within budget.
Our sales and marketing department has the following responsibilities:
| (i) | New business development, focusing on maximizing Colocation, Lease Amendments and New Site opportunities based on the customer’s roll out plans; |
| (ii) | Maintaining and growing business relationships with existing Tenants; |
| (iii) | Collecting feedback regarding the quality of the service and providing prompt assistance in order to maintain the customer’s satisfaction; |
| (iv) | Negotiating commercial contracts, including lease fees, with customers on competitive terms and ensuring accurate billing and timely collection; and |
| (v) | Processing customers’ acceptance of sites and examining the creditworthiness of new customers. |
Customers
Our main customers in each country of operations are leading MNOs in that country. In addition, and to a much smaller extent, we lease space on our Towers to customers providing wireless broadband and data services, to broadcasting companies that use tower infrastructure in the broadcast of television signals, to transmission companies that provide transmission connectivity services and to corporates for the provision of enterprise connectivity. See Item 3.D. “Risk Factors — Risks Relating to Our Business — A significant portion of our revenue is derived from a small number of MNOs. Non-performance under or termination, non-renewal or material modification of customer lease agreements with these customers could have a material adverse effect on our business, prospects, financial condition and/or results of operations.”
The following table sets forth our number of Tenants per country, as of December 31, 2023.
|
|
As of December 31, 2023 |
|
||||
|
|
Number of Key |
|
Number of |
|
Key Customers |
|
|
|
Customer |
|
Total |
|
Percentage |
|
|
|
Tenants |
|
Tenants |
|
of Total |
|
Nigeria |
|
24,719 |
|
26,009 |
|
95 |
% |
South Africa |
|
6,854 |
|
7,251 |
|
95 |
% |
Côte d’Ivoire |
|
4,270 |
|
4,871 |
|
88 |
% |
Cameroon |
|
3,578 |
|
3,743 |
|
96 |
% |
Zambia |
|
2,601 |
|
2,942 |
|
88 |
% |
Rwanda |
|
2,077 |
|
2,786 |
|
75 |
% |
Brazil, Peru and Colombia |
|
10,144 |
|
10,429 |
|
97 |
% |
Kuwait |
|
1,672 |
|
1,696 |
|
99 |
% |
Total |
|
55,915 |
|
59,727 |
|
94 |
% |
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As of December 31, 2023, Key Customer Tenants accounted for 94% of our tenant base, with other customer Tenants accounting for the other 6%.
Churn
Churn refers to the loss of tenancies when services provided by us are terminated, a tenant does not renew its contract or we have ceased recognizing revenue for sites under a customer’s contract. For example, a tenant may Churn if the MLA or SLA is not renewed at the end of its term, the customer ceases operations or switches to a competing tower company. Other than a customer Churning at the end of the term of its MLA or SLA, our MLAs generally contain limited termination clauses. Certain of our customer agreements also contain a contractual right to Churn a limited number of sites each year without penalty. When we decommission a site and move a customer from one of our sites to another site to rationalize our portfolio, this is not included in Churn.
We experienced Churn in the years ended December 31, 2023, 2022 and 2021, of 1,334, 603 and 1,283 Tenants, respectively. Of the 1,334 Tenants churned in 2023, 731 were as of the result of the rationalization program agreed with a Key Customer. The Churn that we have historically experienced from our Key Customers has been limited, however in September 2023, MTN Nigeria issued a statement that it has selected ATC Nigeria Wireless Infrastructure Solutions Limited to provide services to approximately 2,500 sites that are currently owned and managed by IHS Nigeria pursuant to lease agreements that are due to expire in 2024 and 2025 (see also Item 3.D. “Risk Factors — Risks Relating to Our Business — We may experience the loss of tenancies and/or customers, and are exposed to the loss of revenue from the failure or acquisition of any customer or customer consolidation").
Suppliers
We purchase a variety of structural and fabricated products, mechanical and electrical equipment including batteries, generators, power systems and solar systems, electronic equipment such as remote monitoring systems, and diesel fuel to manage our network operations. We operate a procurement and supply chain network with dedicated employees across the countries in which we operate. Our procurement and supply chain operations aim to take advantage of opportunities to leverage our scale across the countries in which we operate, as appropriate, to try to optimize the efficiency of our supply network in a sustainable manner. We purchase from a variety of suppliers and aim to develop the sourcing based in such a way that these products are available from multiple suppliers.
Competition
We believe that competition in the tower infrastructure industry in emerging and less developed markets (including markets such as Africa, the Middle East and Latin America) is based on, among other things, power management expertise, tower location, relationships with telecommunications operators, tower quality and height, pricing or other more favorable or suitable contractual terms, and ability to offer additional services to tenants and operational performance, as well as the size of a company’s site portfolio and its ability to access efficient capital.
We believe we are the market leader in Africa by tower count as of December 31, 2023, with 30,451 towers. ATC is our primary competitor in Africa among independent tower companies, including in Nigeria and South Africa, and Helios Towers Plc and SBA are other notable competitors in Africa. In Brazil, the competitive landscape is wider, with ATC, SBA and Highline owning more towers than we do as of December 31, 2023, and numerous smaller tower companies of similar size to or smaller than our business. The Brazilian and South African competitive landscapes present opportunities for consolidation. We also compete to a lesser extent with telecommunications operators who have retained their own towers and continue to manage them and make them available for Colocation or who have formed their own independent companies for the sole purpose of providing tower infrastructure sharing. In certain circumstances, we also compete with owners of alternative site structures such as building rooftops, outdoor and indoor DAS networks, billboards and electric transmission towers. In addition, there may be increased competition in the future from other independent tower companies operating in, or that may enter, our markets.
In our Nigeria and SSA segments, we have over the years built many New Sites for our major customers. In Brazil, New Sites forms a key part of our organic growth strategy and prior to the CSS Acquisition, the CSS business was a market leader in New Site volumes. For further information regarding the competitive landscape of the tower industry and related risks, please refer to Item 3.D. “Risk Factors — Risks Relating to Our Business — Increased competition in the tower infrastructure industry may materially and adversely affect our business.”
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Permits and Regulation
Overview
We are subject to regulatory requirements relating to licensing and registration in most of the countries in which we operate. The regulations and procedures guiding the operation, location and leasing of telecommunications towers are generally drawn from national, state and local legislation, regulations and administrative consents from the relevant government or governmental authorities in each jurisdiction in which we operate.
In each relevant jurisdiction, specific consents and/or permits are required to erect and own masts and towers. These consents generally relate to building or construction permits, property or land use permits, environmental permits and aviation clearance permits. As we continue to expand our offering to include services like fiber connectivity, rural offerings and other verticals, we may be subject to increased regulatory, license and permit obligations (including in respect of active telecommunications elements that may comprise part of the arrangements with customers). Non-compliance with applicable regulatory requirements, licenses, consents and permits may lead to shut down and/or decommissioning orders relating to the sites and/or monetary fines and/or an inability to continue our business or pursue new business lines or investments.
License to operate
Most of the jurisdictions in which we currently operate have a license or authorization regime to operate a passive communications infrastructure business. Where applicable, licenses or authorizations are issued by the relevant national regulator which regulates our operations in such country. A summary of some of these key licenses and/or authorizations is as follows:
| ● | Cameroon. IHS Cameroon operates under a five-year renewable license, which was renewed by the Ministry of Posts and Telecommunications (Ministere des Postes et Telecommunications) in November 2022. |
| ● | Côte d’Ivoire. While the licensing regime for the passive communications infrastructure sector is currently in the process of being finalized by the government, IHS Côte d’Ivoire operates under a General Authorization (Autorisation Générale) issued for issued for ten (10) years from July 2023 by ARTCI. |
| ● | Nigeria. The NCC has issued Infrastructure Sharing and Colocation Licenses to each of IHS Nigeria Limited, INT Towers Limited and IHS Towers NG Limited. Each such license is granted for a period of 10 years and is renewable at its expiration for a subsequent period of 10 years. The NCC has also issued a Unified Access Service Licence to Global Independent Connect Limited for a period of 15 years, which is renewable at its expiration for a subsequent period of 15 years. None of our operating subsidiaries’ licenses are due for renewal before December 2024. |
| ● | Rwanda. The Rwanda Utilities Regulatory Authority, or RURA, has issued a license to each of our Rwanda operating entities. These licenses are valid for an initial period of 15 years and each license can be renewed for successive five year periods. |
| ● | South Africa. Tower operators do not require any tower company specific licenses or authorizations issued by the South African regulatory authorities. |
| ● | Zambia. ZICTA has issued a Network (National) License to IHS Zambia, which is valid for an initial period of 15 years and can be renewed for subsequent periods of 10 years after the expiration of its initial term. |
| ● | Kuwait. IHS Kuwait Limited operates under (1) a commercial license issued by the Kuwait Ministry of Commerce and Industry valid until July 8, 2027; (2) an investment license issued by the Kuwait Direct Investment Promotion Authority valid until July 8, 2027; and (3) an operational license issued by the Communication and Information Technology Regulatory Authority valid until July 7, 2034. |
| ● | Egypt. The National Telecom Regulatory Authority (“NTRA”) issued IHS Egypt a license to construct, operate and lease wireless communication towers within the Arab Republic of Egypt in accordance with the rules, conditions and specifications specified in the regulatory framework issued by NTRA in 2020. The license is valid for an initial period of 15 years from October 2021 and can be renewed for subsequent periods of 10 years after the expiration of its initial term (or any renewed term) upon a written request submitted by the licensee to the NTRA at least three years before the end of the original license period or any renewed periods thereof. |
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| ● | Brazil. Tower operators do not require any tower company specific licenses or authorizations issued by the Brazilian regulatory authorities. All providers of multimedia communications services (Serviço de Comunicação Multimídia), which includes providers of fiber connectivity, are required to have a license issued by Anatel (Licença SCM — Serviço de Comunicação Multimídia) in order to operate in Brazil. I-Systems holds the required license. |
| ● | Colombia. Our Colombian entities do not require any tower company specific license. |
| ● | Peru. Our Peruvian entity holds an infrastructure provider registration certificate issued by the Peruvian Ministry of Communications which permits us to provide tower space to MNOs. It was renewed in July 2021 for an indefinite term. |
Land Use
In most of the countries in which we operate, a building permit from the relevant public authority, such as the municipality or local district, is sufficient for building a telecommunications tower. The number of permits, payments and consents relating to land usage tends to be higher in Nigeria and Brazil, largely due to the administrative structure of the Nigerian and Brazilian governments (generally divided between federal, state and local government authorities). In Rwanda, RURA operates as the single provider of all relevant permits and grants any relevant building permit relating to sites after permissions or non-objections have been received from local and environmental authorities.
Consequences for failure to obtain building or construction permits may include a requirement to dismantle a tower which, in some areas, such as Lagos state in Nigeria, may be at the expense of the owner of the tower.
In addition to the permits and authorizations referred to above, we must enter into agreements relating to the right of land usage for each site on which a tower is located. This can take the form of a lease agreement, a concession agreement or title documentation for those sites where we have acquired the underlying land. In some countries, such as Cameroon, Côte d’Ivoire and Nigeria, a lease agreement needs to be registered with the relevant authorities. See “— Real Property Leases.”
Civil Aviation
Aviation regulations may apply to the building and operation of towers. While in the majority of cases, aviation regulations provide for a one-off clearance by the respective civil aviation authority prior to the construction of a site located in the vicinity of an airport, the Nigerian Civil Aviation Authority has a broader remit and requires a yearly renewal approval certificate in addition to prior consent before the construction of towers and masts installed within 15 kilometers of any airport, or within the proximity of helicopter pads and their approaches.
The Brazilian Civil Aviation Authority requires tower sites to obtain an approval certificate that must be renewed yearly. The Civil Aviation regulation in our other countries of operation typically encompasses an obligation to provide security lighting on towers and/or to paint them a certain color.
Others
In most of the countries where we operate, zoning restrictions and certain other restrictions may apply to tower construction. Any applicable radius requirements will largely depend on whether the construction is in an urban or rural area, and sometimes on the height of the structure. For example, in Nigeria, towers in excess of 55 meters in height may not be built within a one kilometer radius of another tower without the Nigerian Communications Commission’s prior consent, and there may also be set-back requirements based on distance to certain controlled access areas, roads or high voltage power transmission lines; in Cameroon, the minimum distance required between sites is generally 750 meters in residential areas and two kilometers in non-residential areas; in Rwanda, the minimum distance required between sites is generally 500 meters in urban areas and one kilometer in rural areas; and in Zambia, the minimum distance required between sites is generally 500 meters.
In addition to the main licenses, permits and consents listed above, additional regulations may also apply to certain operations. For example, depending on the location of a site, a Lagos State Infrastructure Maintenance Agency (previously the Urban Furniture Regulatory Unit) consent may be required in Nigeria, which may require a tower to be painted a certain color or to be disguised, and the Federal Capital Development Authority may require a tower situated in Abuja to be disguised.
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Environmental Regulation
Our operations are subject to various national, state and local environmental laws and regulations, including those relating to the management, use, storage, disposal, emission and remediation of, and exposure to, hazardous and non-hazardous substances, materials and wastes and the siting of our Towers. We may be required to obtain permits, pay additional property taxes, comply with regulatory requirements and make certain informational filings related to hazardous substances or devices used to provide power such as batteries, generators and diesel at our sites. See Item 3.D. “Risk Factors — Risks Relating to our Business — We could have liability under health, safety and environmental laws.”
While no specific environmental authorizations are required to build or operate Towers in Côte d’Ivoire and Kuwait, specific regulations and authorizations apply in our other markets. In Cameroon, the construction of a site requires a one-off prior approval from the Ministry of the Environment, Protection of Nature and Sustainable Development (Ministère de l’Environnement, de la Protection de la nature et du Développement durable), In Rwanda and Zambia, the construction of a site requires a one-off prior approval from several environmental and local government authorities (the permit is ultimately granted by RURA, which is the single approver for all regulatory authorizations for our activities in Rwanda, and the Zambia Environmental Management Agency for our activities in Zambia). Similarly, in Brazil, Colombia and Peru, prior approval from the local environmental agency may be required before any new site is built and additional environmental authorizations might be required for sites built in protected areas. In Nigeria, environmental authorizations are required at two stages: the Federal Ministry of Environment requires an Environmental Impact Assessment to be issued prior to the construction of a site and every three years after a site is built an Environmental Audit Certificate needs to be issued or renewed by the National Environmental Standards and Regulations Enforcement Agency in respect of such site. In South Africa, the construction of a site requires a one-off environment permit prior approval from the Department of Environmental Affairs.
Insurance
We have insurance policies in relation to (i) property damage, business interruption and erection/construction, (ii) political violence, (iii) third-party liability and (iv) directors’ and officers’ liability.
We maintain an all-risks policy for property damage, business interruption and erection/construction. This policy covers against losses that might arise from damage or loss to the tower infrastructure, including earthquakes, windstorms and floods. A political violence policy was also purchased to cover material damage and business interruption caused by terrorist or sabotage acts. We also carry a general third-party liability policy, covering third-party property damage and third-party personal injury where we are found to be legally liable.
Each of our insurance policies is subject to contractual terms and conditions, limits of indemnity, deductibles and exclusions and therefore we may be prevented from recovering in full for losses or damages that we may suffer.
Sustainability Program
Through our business model, we aim to make a positive impact in society and promote shared values. Our investment in communications infrastructure aims to help connect individuals, businesses and communities to one another. As mobile connectivity reaches more people, and is consumed in more diverse modes, it creates more jobs, and greater opportunities for people, businesses and communities to thrive and prosper. As a critical element of the telecommunications value chain in our markets, we help deliver connectivity across our eleven-country footprint, which has a combined population of approximately 780 million people. This is crucial in emerging and less developed markets where the need for digital infrastructure and connectivity is particularly high. We provide infrastructure to be shared by multiple customers, rather than duplicating investment and infrastructure build.
Flagship projects
Our business model allows us to tackle significant community issues through providing our infrastructure, such as a lack of reliable power in our African markets and an over reliance on GHG emitting diesel generators, as well as a lack of digital connectivity in rural communities. To reduce our carbon footprint and provide better end service to our customers, we have historically invested in carbon reduction solutions such as batteries, solar and other clean energy sources at our sites.
| ● | Our Carbon Reduction Roadmap provides a comprehensive strategy for decreasing our operational emissions, including a goal to reduce the Scope 1 and Scope 2 kilowatt-hour emissions intensity of our tower portfolio by 50% by 2030, using 2021 emissions data as the baseline, which we will review as we expand into new markets or |
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| encompass growth, or as needed to reflect significant changes in our organization. Under Project Green, the current phase of our Carbon Reduction Roadmap, we updated 2,750 sites through a combination of connecting them to the electricity grid, deploying or upgrading battery storage and deploying or upgrading solar panel solutions, which reduced our diesel consumption. |
| ● | In 2023, we invested $103 million, bringing the total to $207 million since the beginning of Project Green. Emissions and financial savings are achieved by connecting more sites to the electricity grid and via the deployment and integration of battery storage and solar panel solutions. In scope for Project Green are our operations in Cameroon, Côte d’Ivoire, Kuwait, Nigeria, Rwanda, and Zambia. In 2021, approximately 73% of our sites in Africa had access to grid, hybrid, and/or solar solutions. Following the completion of Project Green in 2025, we expect just 9% of our sites in Africa (excluding Egypt and South Africa) to rely solely on generators, while the remaining 91% are expected to have a combination of other power sources including grid, hybrid, and/or solar solutions. By deploying these solutions, we hope to both help limit outages and further decarbonize our footprint by reducing generator run-time. We currently anticipate additional efforts will be needed to achieve our 2030 emissions intensity goal and plan to consider various options as we roll out efforts to complete Project Green. |
| ● | We continued to expand our rural telephony network services in Nigeria and Cameroon. This solution aims to provide remote communities with 2G and 3G voice and data access so that they can benefit from the socioeconomic opportunities made available by mobile connectivity. By deploying an efficient solar-powered network solution, connected by dedicated very-small-aperture terminal transmission links, as of December 31, 2023, we have established a total of 601 operational rural telephony sites, all powered exclusively by solar. |
| ● | We announced a new partnership with the non-profit organization, Limitless Space Institute (LSI), to broaden access to space education. Through this collaboration, 20 STEM teachers from Brazil and Nigeria were invited to join the 12-month Limitless Global Educator Program focused on space education covering a wide range of topics, including the significance of space exploration, the scientific subjects and concepts relevant to space education, its history, the economics of space, as well as sustainable exploration and space ethics. The program aims to better equip teachers with the skills and knowledge to educate their students in space education with the aim of encouraging broader student interest in the subject. The program received nearly 300 applicants from Brazil and Nigeria to participate in the program which started in January 2024. |
| ● | We continued our Group-wide partnership with UNICEF on their worldwide Giga initiative. Giga is a partnership between UNICEF’s Office of Innovation and ITU’s Telecommunications Development Bureau, which aims to connect schools worldwide to the internet. Under our three-year partnership, we committed a $4.5 million donation and contribution-in-kind to strengthen Giga’s work to map schools and their connectivity levels on an open-source map, using machine learning and satellite imagery. As providers of communications infrastructure, we play an important and unique role in Giga’s partner ecosystem. Under the ‘contribution-in-kind’ component of our partnership, we supplied data on all IHS tower and fiber sites in Brazil, our second largest market, including tower location, site type, tower height, power topology and technology available. This data is helping Giga accelerate their mapping capabilities and determine the most efficient and effective ways to connect schools to the internet. The data has also been used to inform and support governments and other stakeholders in the decision-making process for school connectivity. |
We entered the third year of our Frontline Workers Initiative, a philanthropic program designed to provide education scholarships for children of our frontline workers. The 2023 scholarship program had an increased focus on STEM subjects and female applicants, as we remain committed to helping expand educational opportunities for young women in our markets. In 2023, 23 students from Nigeria, Côte d’Ivoire, Rwanda and Zambia received scholarships; of these, 13 are female and 10 are male.
Our four-pillar strategy
In addition to the sustainability considerations inherent in our business model and helping the digital agenda in our 11 countries of operation advance through infrastructure provision, to support further sustainable growth, we have also developed a sustainability strategy built on four pillars: (i) environment and climate change, (ii) education and economic growth, (iii) our people and communities and (iv) ethics and governance. Each year, our in-country teams assess local community needs through the lens of these four pillars to help develop our in-country sustainability programs, aiming to identify clear actions and commitments for relevant projects.
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Education is a significant priority for our in-country teams, as we believe education is key to social and economic development. We recognize the importance of fostering wider community support, particularly in poorer regions where access to education is significantly more limited. We also believe in improving educational facilities to provide the right learning environment. We concentrate many of our community-building initiatives on strengthening local education systems, particularly in the areas of science, technology, engineering and mathematics, or STEM, in part to help foster the future talent of our industry. We partner with NGOs, universities and governments to provide young people with practical exposure to STEM subjects and contribute to improved teaching in schools. As many STEM-related professions are traditionally male-dominated, we also seek to develop programs that focus on providing young girls and women with access and opportunity to relevant learning and training.
| ● | In Brazil, we continued our partnership with WorldFund, conducting training for middle and high school science and math teachers working in four public schools in Rio de Janeiro and two in Para state, providing equipment for them to use in the classroom. Through the Listo Program in Colombia, we provided training to teachers to help them upskill on best-practice leadership methodologies. |
| ● | We participated in several education initiatives relating to robotics in 2023. In Zambia, we partnered with the Luso Robotics Foundation to deliver a workshop for approximately 50 pupils. In Nigeria, we worked with the KAD ICT Hub to host the fourth annual STEM and Creativity Festival, which included a two-day robotics and hackathon competition for more than 600 young people. |
| ● | To help young people from low-income areas develop digital skills, IHS South Africa donated laptops to the NGO Umnotho for Empowerment’s computer literacy course. In partnership with Ubuntu Pathways, we also supported the creation of a STEM lab at a primary school. |
| ● | Through the Sustainable Solution Africa Pitch and Awards Program, IHS Nigeria, in partnership with We for Good, provided seed funding to the six winning start-ups looking to develop innovative business ideas supporting climate action, sustainable growth and poverty alleviation. In addition, through IHS Nigeria’s Project Empower, we are providing people from socio-economically disadvantaged backgrounds with training in growing sectors. In 2023, 50 people completed courses in renewable energy, catering and hospitality management through Project Empower. |
| ● | In Brazil, we partnered with the cultural NGO Afroreggae to develop educational centers in two favelas in Rio de Janeiro. Many residents of favelas do not have access to PCs, mobile phones or the internet, but by offering access to online games, the centers are able to attract youth which benefit from free coding and English classes in an environment that promotes further study and development. In 2023, we supported two Afrogames cohorts in Rio de Janeiro, comprised of 106 e-sports athletes and 21 aspiring developers. The 10-week program is held in the Maré favela and offers young people weekly lessons in English and coding, while allowing them to practice e-sports. |
| ● | In Côte d’Ivoire, we continued to sponsor the Web Art Creativity competition to promote digital and online skills among children, with almost 100 schools participating this year. Organized by Côte d’Ivoire’s Ministry of National Education and Literacy in collaboration with the Directorate of Technologies and Information System, the competition focuses on students’ computer skills and offers a space for high school students to express their creativity and talent in computer programming. |
Beyond education, a key priority for us is safeguarding and enhancing healthcare provisions. While most societies have learned to manage through COVID-19, we continue to provide healthcare initiatives in our communities in multiple ways and often work in partnership with international NGOs. We partnered with the Nigerian NGO Steer for Change to distribute essential supplies to pregnant or nursing women, such as birth kits, baby care products, mosquito nets and medication. We also commemorated World Humanitarian Day in partnership with Steer for Change and Livewell Initiative. Together, we funded and facilitated welfare programs and medical outreach support for 2,000 beneficiaries and 381 pregnant or nursing women across seven communities.
Under our Generator Recycling Program, we refurbish old generators from our sites and donate them to schools, orphanages, hospitals, medical and community centers. Since the program launched in 2017, we have donated approximately 421 generators as of December 31, 2023, across our African markets providing a power source where electricity grids are often intermittent and unreliable. Our partnership with the Balad Al Khair Society, an NGO that supports low-income, marginalized families across Kuwait, entered its third year. We expanded our AC donation program, which aims to keep vulnerable families cool during Kuwait’s dangerously hot summer days.
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In 2023, we supported families by donating 60 units to replace old or ineffective AC systems.
We are committed to supporting the professional development of all our employees. We aim to enable them to build the skills and knowledge required to enhance their careers at IHS. In 2017, we launched the IHS Academy, an online training portal which, as of December 31, 2023, had more than 16,279 training items available including e-learning courses, videos, how-to guides and other training materials across a variety of areas including professional skills, personal development skills, management, leadership and teamworking skills, as well as a selection of health, safety, environment and compliance courses. In 2023, our employees completed more than 67,000 e-learning items.
We have continued to expand our Women In IHS Network, or WIIN, mentoring program, as part of our commitment to increase gender diversity in our workforce. With over 39 mentoring pairs formed in the year, this program provides opportunities for IHS female employees to be mentored and aims to help facilitate new professional relationships, enabling mentees to build networks and improve skillsets. We also continued to promote our open mentoring program, Engage and Elevate, with 140 pairs matched in 2023. Launched in 2022, this program provides mentoring opportunities for all employees, male and female, across all IHS entities to learn from and network with their peers. Over the course of 2023, we have matched 179 mentoring pairs across the Group. Additionally, we introduced a reverse mentoring scheme whereby senior business leaders are matched and ‘mentored’ by junior colleagues, with the aim of increasing lines of communication and helping all employees be heard.
Finally, ethics is at the heart of all we do, and we are committed to acting with integrity and honesty in everything we do. Our corporate structure provides a strong governance foundation, which is driven from the Board down through the organization. Our Board committee structure is detailed in Item 6.C. “Board Practices.”
Sustainability Reporting
We also publish an annual Sustainability Report. We published our fifth annual Sustainability Report in May 2023, using the Global Reporting Initiative (GRI) standards. In 2022, we conducted our second ESG materiality assessment using the GRI Standards to identify the environmental, social and governance topics that are most important to our business and stakeholders. The second ESG materiality assessment built on the work of the first assessment we conducted in 2020 and involved input from internal and external stakeholder groups, in line with best practices. The Report maps our sustainability initiatives to the United Nations’ Sustainable Development Goals. IHS’ approach to sustainability is guided by the UN Global Compact, to which the Company has been a signatory since 2020.
C. Organizational Structure
The legal name of our company is IHS Holding Limited and we are organized under the laws of the Cayman Islands. We are a holding company and conduct substantially all of our business through our operating subsidiaries. Note 30.1 to our audited consolidated financial statements included in this Annual Report contains our subsidiary names, principal activity, place of incorporation and legal ownership at December 31, 2023.
D. Property, Plant and Equipment
As of December 31, 2023:
| ● | We lease a total of 4,137 square meters of office space and 43,152 square meters of warehouse space across Nigeria, and we own our Lagos office, at Plots 934 and 935 Idejo Street, Victoria Island, Lagos Nigeria; |
| ● | We lease a total of 12,450 square meters of office and warehouse space across Côte d’Ivoire; |
| ● | We lease a total of 7,736 square meters of office and warehouse space across Cameroon; |
| ● | We own our main office at Stand 12/1494 Corner Makishi and Mwalule Roads, Northmead Lusaka, Zambia and lease 4,296 square meters of warehouse space across Zambia; |
| ● | We lease 2,800 square meters of office and warehouse space in Kigali, Rwanda; |
| ● | We lease a total of 896 square meters of office space in the United Kingdom; |
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| ● | We lease a total of 2,640 square meters of office space in Dubai; |
| ● | We lease a total of 1,158 square meters of office and warehouse space in Kuwait; |
| ● | We lease a total of 5,493 square meters of office and warehouse space in South Africa; |
| ● | We lease a total of 2,799 square meters of office space in Brazil; and |
| ● | We lease a total of 95 square meters of office space for our offices in Colombia. |
See Item 4.B. “Business Overview—Our Tower Portfolio” for information regarding the Towers owned and operated by us and Item 4.B. “Business Overview—Real Property Leases” for information regarding our ground lease agreements for the real property on which our Tower sites are located.
Item 4A. Unresolved Staff Comments
None.
Item 5. Operating and Financial Review and Prospects
A. Operating Results
You should read the following discussion of our operating and financial review in conjunction with our consolidated financial statements and the related notes included elsewhere in this Annual Report. The following discussion is based on our financial information prepared in accordance with International Financial Reporting Standards, or IFRS, as issued by the International Accounting Standards Board. Where appropriate these discussions are based on non-IFRS measures which are reconciled to an IFRS measure (refer to the Key Financial and Operational Performance Indicators).
This discussion contains forward-looking statements and involves numerous risks and uncertainties, including, but not limited to, those described in the “Risk Factors” section of this Annual Report. See “Cautionary Statement Regarding Forward-Looking Statements.” Our actual results could differ materially from those contained in any forward-looking statements.
The information called for by this Item 5, including a discussion of the year ended December 31, 2021 compared to the year ended December 31, 2022 has been reported previously in our Annual Report on Form 20-F filed on March 28, 2023 under the Section “Item 5. Operating and Financial Review and Prospects”.
Overview
We are one of the largest independent owners, operators and developers of shared communications infrastructure in the world, providing our customers, most of whom are leading MNOs, with critical infrastructure that facilitates mobile communications coverage and connectivity for approximately 780 million people in emerging markets, across three regions and eleven countries. We are the largest independent multinational emerging-market-only tower operator and one of the largest independent multinational tower operators globally, in each case by tower count. As of December 31, 2023, we operated 40,075 Towers across seven countries in Africa, three countries in Latin America and one country in the Middle East. We are the largest tower operator in seven of the eleven markets in which we operate and we are the only independent tower operator of scale in five of these markets.
We have a well-defined organic and inorganic expansion strategy designed to grow in existing markets with our existing and new customers and, given the significant global emerging market opportunities in communications infrastructure, enter carefully selected growth oriented markets with compelling underlying fundamentals. Historically, our business has been predominantly focused on Towers, however we recently started complementing this with investment into adjacent communications infrastructure offerings for our customers such as fiber connectivity. In August 2023 we completed the sixth stage of the Kuwait acquisition comprising of 101 towers. Each of these acquisitions supports our inorganic growth strategy of expanding into additional regions that meet our investment criteria, which opens up new markets that we believe will provide future organic and inorganic growth opportunities.
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Our core business is providing shared communications infrastructure services to MNOs and other customers, who in turn provide wireless voice, data and fiber access services to their end users and subscribers. We provide our customers with opportunities to lease space on existing Towers alongside current Tenants, known as Colocation, to install additional equipment on a Tower or request certain ancillary services, known as Lease Amendments, or to commission the construction of new Towers to the customer’s specifications, known as New Sites. Additionally, we lease space to our customers in secure locations within large building complexes, such as shopping malls, stadiums and airports, which we refer to as in-building solutions, or IBS, or distributed antenna systems, or DAS, as well as provide fiber connectivity. In certain strategic instances, we may also provide Managed Services, such as maintenance, security and power supply for Towers owned by third parties. As of December 31, 2023, our owned and operated tower portfolio supported 59,727 Tenants, with a Colocation Rate of 1.49x.
Our primary customers are the leading MNOs in each of our markets. We also provide infrastructure and services to a number of other communications service providers. Our success in establishing deep customer relationships and operational excellence has enabled us to grow both organically and through 22 transactions, building a footprint that currently covers Nigeria, Côte d’Ivoire, Cameroon, Rwanda, South Africa, Zambia, Brazil, Peru, Colombia, Kuwait and Egypt.
Reportable Segments
Our operations are organized into four segments, which reflect the way our chief operating decision maker, or CODM, is provided with financial information which aligns to internal regional management organizational reporting lines and responsibilities and the way in which the CODM analyzes performance and allocates resources. Our operating segments are Nigeria, which comprises our operations in Nigeria; Sub Saharan Africa, or SSA, which comprises our operations in Cameroon, Côte d’Ivoire, Rwanda, South Africa and Zambia; Latin America, or Latam, which comprises our operations in Brazil, Colombia and Peru; and the Middle East and North Africa, or MENA, which comprises our operations in Kuwait and Egypt. Although full operations in Egypt have not commenced, the business has incurred some startup costs.
We use revenue and segment Adjusted EBITDA to assess the performance of our reportable segments. Segment Adjusted EBITDA is our principal segment measure of profitability.
Our Revenue
We measure revenue in three categories, namely (i) organic, (ii) inorganic and (iii) non-core.
Organic revenue captures the performance of our existing business without the impact of new tower portfolios or businesses acquired since the beginning of the prior year period (except as described as inorganic below). Specifically, organic revenue captures the impact of (i) new Colocation and Lease Amendments; (ii) changes in pricing including from contractual lease fee escalation, power indexation and foreign exchange resets; (iii) New Site construction; (iv) fiber connectivity and (v) any impact of Churn and decommissioning. In the case of an acquisition of new tower portfolios or businesses, the impact of any incremental revenue after the date of acquisition from new Colocation and Lease Amendments or changes in pricing on the Towers acquired, including from contractual lease fee escalation and foreign exchange resets, is also captured within organic revenue.
Inorganic revenue captures the impact on revenue from existing Tenants of new tower portfolios or businesses that we have acquired since the beginning of the prior period (except as described above). Where tower portfolios or businesses were acquired during the current period under review, inorganic revenue is calculated as the revenue contribution from those acquisitions in their “at acquisition” state (measured as the local currency revenue generated during the first full month following the acquisition) in the current period. This treatment continues for 12 months following acquisition. In August 2023, IHS Kuwait completed the sixth stage of the acquisition from Zain Kuwait comprising of 101 Towers and 109 Tenants. We therefore have inorganic revenue for the year ended December 31, 2023.
Non-core captures the impact of movements in foreign exchange rates on the translation of the results of our local operations from their local functional currency into U.S. dollars, which is measured by the difference in U.S. dollars between (i) revenue in local currency converted at the average foreign exchange rate for that period and (ii) revenue in local currency converted at the average foreign exchange rate for the prior period. This foreign currency impact is then partially compensated for in subsequent periods by foreign exchange reset mechanisms, which are captured in organic revenue.
The organic and non-core components of our revenue cannot be considered independently from each other in assessing, for instance, what the impact on organic revenue would have been in the absence of change in the foreign exchange rate.
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In fact, the periodic (monthly, quarterly, semi-annually or annually) nature of our reset mechanisms is such that there is a delay between the period during which a change in foreign exchange rate occurs and the next contractual reset occurs.
Foreign exchange resets are generally included in MLAs where lease fees are linked to currencies other than the local currency (for example, MLAs in Nigeria with U.S. dollar components). MLAs with foreign exchange resets typically contain a mechanism for determining the foreign exchange rate for a set period at which the lease fee linked to the non-local currency (such as U.S. dollar) is translated into local currency and invoiced to the customer. In such cases, the foreign exchange rate determined by this mechanism is reset monthly, quarterly, semi-annually or annually.
The foreign exchange resets function such that the portion of lease fees that is linked to U.S. dollars and the portion of lease fees that is linked to local currency are fixed in local currency for the contractual period between reset dates (for example, for a period of one year if the reset is annual). As a result, in the event of a devaluation, there is a delay between the timing of the devaluation and the next contractual reset.
During the period between the date of the devaluation and the date of the reset, all of our revenue (i.e., both revenue that is contractually linked to the U.S. dollar and revenue that is contractually linked to local currency) would reflect the new, devalued foreign exchange rate. When the reset is effected, the amount relating to the portion of the lease fees linked to the U.S. dollar, which is invoiced in local currency, is adjusted upward.
In addition, the conversion rates included in our MLAs may also be different from the rates at which our financial results are translated into U.S. dollars for reporting purposes.
From time to time in the markets in which we operate there have existed situations where there are differing official exchange rates in the market, and we were required to regularly monitor and evaluate which exchange rate is most appropriate to apply in the translation of the Naira books of our Nigerian operations to U.S. dollars for our consolidated group reporting purposes. The determination of which was the most appropriate rate to use at the relevant time we produce financial information depended on a number of factors, including, but not limited to, availability and liquidity in the market generally. The foreign exchange rate that we determined to be the most appropriate for the translation of our results for group reporting purposes may also have differed from the conversion rates contained within our contracts.
In 2020, we reached an agreement with some of our Key Customers in Nigeria to update the reference exchange rate in our contracts to the then prevailing market rate available on Bloomberg (which was typically aligned to the NAFEX rate), should similar circumstances arise again (or continue to exist where there is a divergence between the applicable market rate or translation rates for our financial results and the exchange rates reflected in our contracts with customers, or a divergence between the prevailing market rate on Bloomberg and other exchange rates in the market, including NAFEX), there is no guarantee that we will be able to renegotiate these contracts or enter into new contracts to fully protect against such foreign exchange risks. In addition, other measures taken by the relevant authorities and/or the CBN may further impact the rates available in the market, and we may need to consider such measures for the purposes of our accounts.
In June 2023, the CBN implemented steps to unify the Nigerian foreign exchange market by replacing the old regime of multiple exchange rate segments into a single I&E window within which foreign exchange transactions would be determined by market forces. The Group uses the USD/NGN rate published by Bloomberg, which is approximately aligned to the NAFEM window rate, for Group reporting purposes. In October 2023, the CBN changed all references to I&E window to NAFEM.
While a number of the MLAs with our customers are deemed automatically renewed if not canceled by the stated expiration date, we regularly keep upcoming renewal or expiry dates under review, and engage in discussions with customers from time-to-time regarding such matters. For instance, an MLA with a customer in Côte d’Ivoire was up for renewal in the first half of 2023 and was renewed in December 2023. MLAs with certain customers in Nigeria, Rwanda and Zambia are up for renewal in 2024 and MLAs with certain customers in Rwanda, South Africa and Zambia are up for renewal in 2025. No assurance can be given that our customers will renew their customer lease agreements upon expiration of those agreements or that customers will not request unfavorable amendments to existing agreements, or that we will be successful in negotiating favorable terms with these customers.
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Factors Affecting Our Financial Condition and Results of Operations
Our financial condition and results of operations have been, and will continue to be, affected by a number of important factors, including the following:
New Colocation and Lease Amendments
Colocation and Lease Amendments are key drivers of incremental organic revenue in communications infrastructure sharing. Colocation involves adding new tenants to existing sites, where the addition of an incremental tenant to an existing site can introduce a full additional lease fee. Lease Amendments involve adding additional equipment or providing certain ancillary services at existing sites for existing Tenants and for a recurring lease fee. Examples of Lease Amendments include an existing customer taking more space on a tower, adding equipment for new technologies, such as 3G, 4G/LTE or 5G, adding additional microwave transmission or fiber infrastructure services, as well as certain ancillary services. A Lease Amendment typically increases revenue by a proportionally lower amount than a Colocation given such equipment typically consumes less space and power than a Colocation. However, gross margin contribution of a Lease Amendment is generally comparable to a Colocation.
Colocation and Lease Amendments improve overall gross margins, operating margins and cash flow given the limited incremental cost to deliver such services. Typically, the main incremental cost to deliver Colocation or Lease Amendments is $6,000 to $16,000 in augmentation capital expenditure. Additionally, in our African markets, the main incremental ongoing cost for Colocation and Lease Amendments is power cost for the additional equipment or services. We continually seek to increase Colocation and Lease Amendments for our existing sites through an active sales and marketing process. Our sites that are either at or near structural capacity can also be strengthened to meet future leasing capacity with relatively minor capital investments. In February 2024, we entered into an agreement with Airtel Nigeria which includes among other things a commitment for Airtel Nigeria to take approximately 3,950 tenancies over the next five years.
The demand for Colocation and Lease Amendments from MNOs is driven by multiple communications industry characteristics within our individual markets. These characteristics include the MNOs’ need for greater network coverage and network density due to existing capacity- constrained networks, a desire to improve quality-of-service, increasing subscriber demand for wireless voice and data services requiring a denser network than is the case for voice services, as well as changes in and the development of technologies in those markets.
Contractual lease fee escalation and foreign exchange resets
Our MLAs generally contain annual inflation-linked escalation provisions under which the underlying lease fees, and therefore our revenue, may increase each year. These contractual escalators are typically linked to the consumer price index, or CPI, of the country of operation and/or the United States, depending on the underlying currency denomination of the lease fee. Lease fee components priced in local currency typically have escalators linked to local CPI applied annually for the subsequent 12 months. Lease fee components priced in U.S. dollars typically have escalators linked to U.S. CPI applied annually for the subsequent 12 months. Our MLAs with certain customers are subject to fixed, capped or floored escalators.
Our MLAs sometimes contain a portion of lease fees which are linked to power indexation metrics including diesel and electricity prices.
Foreign exchange resets are generally included in MLAs where lease fees are linked to currencies other than the local currency (for example, MLAs in Nigeria with U.S. dollar components). For further discussion on these foreign exchange resets, please refer to “— Our Revenue.”
New Site construction
New Site construction is a key driver of incremental organic revenue through the customer revenue we invoice from the date the New Site becomes ready for service. New Site construction is also a component of discretionary capital expenditure. Building New Sites requires capital expenditure, principally including materials for the tower, power equipment, land lease fees or land purchase fees, tower construction activities, including civil work, transportation and labor, as well as ongoing operational expenditures for site operation and maintenance. Therefore, construction of New Sites increases our capital expenditure and cost of sales. We pursue construction of New Sites as a key strategy in growing our tower portfolio and providing future capacity for Colocation and Lease Amendments. We do not engage in speculative building and only construct New Sites after obtaining a commitment for a long-term lease with an initial tenant and, in general, if we are aware of, or believe there is, commercial potential for Colocation.
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Demand for New Sites from MNOs is typically driven by multiple communications industry characteristics within our individual markets. These characteristics include the MNOs’ need for greater network coverage and network density due to existing capacity-constrained networks, a desire to improve quality-of-service, increasing subscriber demand for wireless voice and data services and requiring a denser network than is the case for voice services, as well as changes in and the development of technologies in those markets. For example, we often see an increase in demand for New Sites as new technology is rolled out in markets, such as 3G or 4G.
New Sites constructed consist primarily of ground-based towers, but can also include in-building solutions / distributed antenna systems, rooftop towers and cells-on-wheels. These New Sites always begin operations with at least a single Tenant, with Colocation and Lease Amendments expected at future dates. The average cost to build a New Site in our African and Middle East markets is typically in the range of between $50,000 and $110,000, while in Latin America the cost is typically in the range of between $40,000 and $80,000 depending on the market of operation and specification of the tower.
Consequently, the construction of New Sites generally has a positive effect on revenue, and as Colocation and Lease Amendments occur on the tower, we expect to drive incremental organic revenue and have a positive effect on gross margins and operating margins.
Churn
Churn refers to the loss of tenancies when services provided by us are terminated, a Tenant does not renew its contract or we have ceased recognizing revenue on a site in any particular period, adjusted for the reintegration of previously lost tenancies. For example, a Tenant may Churn if the relevant MLA or SLA is not renewed at the end of its term, the customer ceases operations or switches to a competing tower company. Other than a customer Churning at the end of the term of its MLA or SLA, our MLAs generally contain limited termination clauses. Certain of our customer agreements also contain a contractual right to Churn a limited number of sites each year without penalty.
We experienced Churn in the year ended December 31, 2023, of 1,334 Tenants which includes 733 towers occupied by our smallest Key Customer in Nigeria. The Churn that we have historically experienced from our Key Customers has been limited.
Decommissioning
In connection with the acquisition of portfolios of sites, we rationalize our portfolio where we have multiple towers in close proximity to each other. Where economically and commercially viable, we migrate Tenants from one tower onto a nearby tower as an additional Colocation and then subsequently decommission the empty site. Decommissioning spend is a component of discretionary capital expenditure. While the decommissioning of towers offsets our overall growth in the number of towers, it allows us to eliminate cost of sales and ongoing maintenance capital expenditure at the decommissioned towers. The retained sites benefit from lease fees relocated from the decommissioned site and generally only experience a marginal increase in cost of sales due to increased power consumption. The spend associated with decommissioning a site is approximately between $3,200 to $30,000. Since the beginning of 2018, we have decommissioned 429 Towers, and we continue to review our portfolio for further decommissioning opportunities.
Acquisitions of tower portfolios and businesses
The acquisition of tower portfolios and businesses from MNOs and independent tower companies results in incremental inorganic revenue during the period in which the acquisitions occur. Acquisitions of tower portfolios and businesses result in the immediate increase in the size of our overall tower portfolio and help expand our footprint in existing and new markets. Once towers are acquired, we receive revenue from the Tenants and Lease Amendments on such sites and we are responsible for future capital expenditure and costs of sales related to the sites. As we acquire new portfolios of towers, we may incur additional administrative expenses, particularly from acquisitions in new markets, which may impact our operating margins.
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Currency exchange rate
Our operations are conducted by subsidiaries in Nigeria, Côte d’Ivoire, Cameroon, Zambia, Rwanda, South Africa, Kuwait, Brazil, Colombia and Peru, and the functional currency of our operating subsidiaries are the Nigerian Naira (₦), West African CFA Franc (XOF), Central African CFA Franc (XAF), Zambian Kwacha (ZMW), Rwandan Franc (RWF), South African Rand (ZAR), Kuwaiti Dinar (KWD), Brazilian Real (BRL), Colombian Peso (COP), and Peruvian Sol (PEN), respectively. A foreign currency transaction is translated into the functional currency using the exchange rate prevailing at the date of the transaction (or the date of valuation where an item is re-measured). The foreign exchange gain or loss resulting from (i) the settlement of such transaction or (ii) the translation of a monetary asset or liability denominated in a foreign currency is recognized at the exchange rate at period end in the statement of income and comprehensive income.
Our operating subsidiaries’ financial results are then translated into U.S. dollars for reporting purposes. Income and expenses are translated at the monthly average exchange rates (unless this average is not a reasonable approximation of the cumulative effect of the rates prevailing on the transaction dates, in which case income and expenses are translated at the rate on the dates of the transactions). Assets and liabilities are translated at the exchange rate at period end.
As a result of the translations described above, our results are impacted by fluctuations in foreign exchange rates.
In mid-June 2023, the Central Bank of Nigeria implemented steps to unify the Nigerian foreign exchange market by replacing the old regime of multiple exchange rate segments into a single I&E window within which foreign exchange transactions would be determined by market forces. In October 2023, the CBN changed all references from I&E window to NAFEM. As a result, for the period January 1, 2023 to June 30, 2023, the Naira rate depreciated against the U.S. dollar from ₦461.5 to $1.00 to ₦752.7 to $1.00 after the unification of the foreign exchange market. The Naira closed at a rate of ₦911.7 to $1.00 as of December 31, 2023. In the same period the BRL appreciated against the U.S. dollar from BRL5.2 as of January 1, 2023, to BRL4.9 as of December 31, 2023. For the period January 1, 2022, to December 31, 2022, the Naira NAFEX rate depreciated against the U.S. dollar from ₦435.0 to $1.00 to ₦461.5 to $1.00. The BRL appreciated against the U.S. dollar, from BRL5.6 to $1.00 as of January 1, 2022, to BRL5.2 to $1.00 as of December 31, 2022.
In addition, during the year ended December 31, 2022, we experienced a depreciation of the RWF, XAF, XOF, ZAR and ZMW currencies, each as compared to the U.S. dollar, being the primary reason for net foreign exchange losses of $364.2 million reflected in financing costs. During the year ended December 31, 2023, in addition to the NGN and BRL movements described above we experienced a depreciation of the RWF, ZAR and ZMW currencies, each compared to the U.S. dollar resulting in net foreign exchange losses arising from financing of $1,876.2 million in the period, of which a significant impact was from Nigeria which incurred a net foreign unrealized exchange loss arising from financing of $1,653.1 million, primarily from intercompany loans which are USD denominated.
Multiple foreign exchange markets with different exchange rates
Historically, in Nigeria, there have been multiple exchange rates available and/or referenced by the applicable banking authorities. Where multiple official exchange rates exist, we assess the appropriate rate to use in accordance with the requirements of IFRS in translating foreign operations or foreign transactions. In determining the appropriate rate, we assess factors such as access to those rates in the future in order to meet payments or make dividends in the appropriate currency. In determining whether it is appropriate to move from one official rate to another, we consider the available rates in official markets for settlement of transactions.
In June 2023, the Central Bank of Nigeria implemented steps to unify the Nigerian foreign exchange market by replacing the old regime of multiple exchange rate segments into a single I&E window within which foreign exchange transactions would be determined by market forces. The Group uses the USD/NGN rate published by Bloomberg, which is approximately aligned to the I&E window rate, for Group reporting purposes. In October 2023, the CBN changed all references from I&E window to NAFEM.
It should be noted that as a consequence of the previous regime of multiple exchange rate “windows” for different purposes, we reached agreement with certain of our Key Customers in Nigeria in 2020 to update the reference exchange rate in our contracts to the prevailing market rate available on Bloomberg. Most significantly, our contracts with MTN Nigeria previously contained clauses which determined that a portion of the lease fee paid to IHS Towers was based on a pre-agreed U.S. dollar lease fee converted into Naira at the time of invoicing at the prevailing CBN rate. On July 23, 2020, we amended these contracts with MTN Nigeria so that, among other things, the reference foreign exchange rate for converting the U.S. dollar portion of the lease fees into Naira was changed to the prevailing USD exchange rate of NAFEX, defined within the contracts with a reference to the USD/Naira rate published by Bloomberg. The effective date of the agreement with MTN Nigeria is April 1, 2020.
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However, the agreement with MTN Nigeria was concluded in July 2020 and, as such, the financial impact of any amendments to billing in the second quarter of 2020 resulting from the agreement were reflected in our results for the third quarter of 2020.
For further discussion on the impact of this change in exchange rates, please refer to “— Our Revenue.”
Maintenance of sites
We incur capital expenditure in relation to the maintenance of our towers and fiber infrastructure, which is non-discretionary in nature and required in order for us to optimally run our portfolio and to perform in line with our service level agreements with customers. Maintenance capital expenditure includes the periodic repair and replacement of fixtures and fittings of existing sites, and fiber equipment and power equipment at existing sites. A large component of maintenance capital expenditure is for the replacement and servicing of generators and batteries at our sites, which may decrease, should the grid availability in our markets improve. Maintenance capital expenditure per Tower is typically in the range of $2,000 to $6,000 per year in our African and Middle East markets.
In addition to this corrective maintenance capital expenditure, maintenance costs are also incurred in cost of sales where these relate to preventive maintenance that includes the replacement of spare parts and routine checks. Maintenance capital expenditure in Latin America is typically lower given the current scope of maintenance required on Towers.
Typically, when we acquire a tower portfolio, it may be necessary to refurbish the newly acquired Towers in order to bring them to the standard of the rest of our portfolio.
Refurbishment capital expenditure typically involves the deployment of a suitable power system for that site, repairs to the site or improvements to the site structure in order to be in line with our safety obligations, and adaptations to site security and monitoring abilities. Refurbishment capital expenditure is one-off in nature, following which those sites should then have normalized maintenance capital expenditure requirements related to the maintenance of sites as described above. Refurbishment capital expenditure is a component of discretionary capital expenditure since it is typically considered in conjunction with the acquisition of tower portfolios. The capital expenditure associated with refurbishment varies from market to market and tower to tower.
Carbon reduction roadmap
On October 24, 2022, we announced our Carbon Reduction Roadmap which provides a comprehensive strategy for decreasing our operational emissions by reducing diesel usage on tower sites, including a goal to reduce the Scope 1 and Scope 2 kilowatt-hour emissions intensity of our tower portfolio by 2030, using 2021 emissions data as the baseline.
Savings will be achieved by connecting more sites to the electricity grid and via the deployment and integration of battery storage and solar panel solutions. In scope for the Carbon Reduction Roadmap are our operations in Cameroon, Côte d’Ivoire, Kuwait, Nigeria, Rwanda, and Zambia. However our plans in Cameroon, Côte d’Ivoire, Kuwait, Rwanda, and Zambia will only include connecting more sites to the grid.
The total capital expenditure incurred on Project Green from commencement until December 31, 2023, was $207.0 million, of which $103.4 million related to the year ended December 31, 2023.
Cost and consumption of diesel
Power is our largest single operating expense and, in particular, diesel pricing typically has the largest impact on changes in our operating expense. The largest impact is in our Nigerian operations due to low power grid availability and our South African operations where they are connected to the grid and experience significant load shedding. Fluctuations in the price of oil and foreign exchange effects have a direct correlation to the price of diesel that we pay to suppliers in our markets. Falling oil prices should lower our costs, with the degree of reduction dependent on both foreign exchange effects and our diesel requirements. In the case of rising oil prices and the associated cost of diesel, we benefit in limited situations from power indexation clauses in some of our MLAs, which provide pass-through provisions in relation to increased diesel prices and conversely falling diesel prices. However, as the majority of our contracts do not have such pass-through provisions, we remain exposed to diesel price volatility, which may result in substantial increases in our operating costs and reduced profits if prices rise significantly and/or we are unable to enter into adequate cost pass-through arrangements. In Nigeria, to help mitigate against fluctuations in the price of diesel, we bulk buy diesel from time to time to take advantage of suitable pricing.
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Furthermore, we have been reducing our overall diesel consumption through targeted investment in power system solutions to provide power to sites more efficiently, including the use of hybrid and solar systems.
Due to the current volatility in oil prices, the ICE Low Sulphur Gasoil price has decreased over the last twelve months from an average of $947.7/MT in the three month period ended December 31, 2022 to an average of $791.5/MT in the three month period ended December 31, 2023.
On May 31, 2023, the Nigeria Federal Inland Revenue Service issued a letter to diesel suppliers in Nigeria, informing them they would be required to pay VAT at 7.5% on imported diesel at the point of entry into the country. However, on October 1, 2023, the Federal Government of Nigeria suspended VAT on imported diesel for a period of six months effective from October 1, 2023 through to March 31, 2024. Once the suspension has lifted, there may be a direct impact on the Group’s operating costs in Nigeria because the VAT on these inputs might not be able to be fully offset by a pass through to our customers.
Cost of ground leases
The majority of towers we own and operate are on land that we lease from individual landlords. Ground lease fees are generally paid in advance monthly or for a one, three, five, or ten-year portion of the overall duration of the lease (although in our South Africa business, we typically pay our ground leases fees monthly in advance), with typically pre-agreed lease fee increases of between 3% and 60% or variable increases for each subsequent one, three, five or ten-year period. As we roll out additional sites, we are often required to either enter into leases with new landlords, which we endeavor to do under similar terms to those of our existing leases, or acquire the land.
Customer concentration
A significant portion of our revenue in each of our markets of operation is derived from a small number of customers who usually constitute some of the largest MNOs in those markets. In particular, in the year ended December 31, 2023, revenue from our top three MNO customers, considered in each of our individual markets of operation, collectively accounted for 97.0% of our consolidated revenue, with MTN Nigeria and Airtel Nigeria accounting for 45.6% and 16.7%, respectively, of our consolidated revenue for the year ended December 31, 2023. Should there be any negative impact on the businesses of our major customers, including these key MNOs, this in turn could adversely affect their demand for tower space and/or ability to perform their obligations under their lease agreements with us.
Market volatility
We and our customers operate in various international markets, particularly in emerging markets such as in Africa. As a result, we are exposed to economic, political and other uncertainties prevailing in such markets, particularly Nigeria, which is our largest market of operation.
For example, in addition to the currency exchange rate and other factors noted above, our business has been negatively impacted by the tensions between the “Anglophone” and “Francophone” regions of Cameroon.
On October 28, 2022, Moody's Investor Service (Moody’s) downgraded IHS Holding from B2 to B3 and placed the rating on review for downgrade. The rating action on IHS Holding was a direct consequence of the downgrade of the Government of Nigeria and the lowering of Nigeria's foreign currency country ceiling, both to B3. As a result, IHS Holding, which was previously constrained at the B2 ceiling, is now constrained at B3. The rating was placed on review for downgrade to reflect the outlook on the sovereign rating.
On January 27, 2023, Moody’s downgraded the Government of Nigeria’s long-term foreign currency and local currency issuer ratings as well as its foreign currency senior unsecured debt ratings to Caa1 from B3 and changed the outlook to stable. Despite that downgrade, on February 1, 2023, Moody's did not downgrade IHS Holding, but instead confirmed the rating at B3. On February 3, 2023, S&P affirmed Nigeria’s sovereign foreign and local currency credit rating at B-/B (B- for the long-term rating, B for the short-term rating) but moved the outlook to negative. On February 15, 2023, S&P raised the long-term rating on IHS Holding and its senior unsecured notes to B+ from B with the outlook set as negative, which is two notches above S&P's B- transfer and convertibility assessment for Nigeria. On August 4, 2023, S&P revised the outlook on the foreign currency rating on Nigeria to stable from negative. On August 10, 2023, S&P revised the outlook on IHS Holding to stable from negative and affirmed their B+ ratings on the company and its debt. On December 8, 2023, Moody's improved the outlook on Nigeria from stable to positive.
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Following elections earlier in 2023, Bola Tinubu of the ruling All Progressive Congress was inaugurated in May 2023 as Nigeria’s President, and we cannot predict which policies, programs or initiatives the new President’s government may adopt or change or the effect that any such policies, programs or initiatives might have on our operations in Nigeria or financial results. In addition, any ongoing protracted dispute or official appeal process in relation to the election results, as well as the general reorganization of the government by the new President may delay the implementation of any policies, programs and initiatives, which may have negative effects on the Nigerian economy and consequently our financial condition.
In June 2023, the Central Bank of Nigeria implemented steps to unify the Nigerian foreign exchange market by replacing the old regime of multiple exchange rate segments into a single I&E window within which foreign exchange transactions would be determined by market forces. In October 2023, the CBN changed all references from I&E window to NAFEM. As a result, the Naira devalued 59.4% between the period immediately prior to the announcement and the month end rate as at June 30, 2023, from ₦472.3 to $1.00 as of June 14, 2023 to ₦752.7 to $1.00 as of June 30, 2023. The Naira continued to devalue by a further 21.1% in the six month period ended December 31, 2023, to ₦911.7 to $1.00 as of December 31, 2023. In January 2024, there was a further significant devaluation of the Naira to ₦1,455.6 to $1.00 as of January 31, 2024.
As a result of the currency exchange rate fluctuations, particularly in regards to the Nigerian Naira, our strategic and operational plans need to be continually reassessed to meet the challenges and needs of our businesses in order for us to remain competitive. For instance, we expect to adopt a more balanced approach to revenue growth and cash generation to counterbalance the recent macroeconomic headwinds across the world, particularly in Nigeria given the significant recent depreciations of the Naira in June 2023 and January 2024. As part of our heightened focus on cash generation, we may pursue operational efficiencies through productivity enhancements, cost and capital expenditure reductions, and a review of our portfolio of markets and assets.
Macroeconomic Issues
Global deterioration in economic conditions could adversely and materially affect us and/or our customers through disruptions of, among other things, the ability to procure communications equipment or other supplies through the usual supply chains. For instance, shortages of capacity in shipping may occur and could affect the smooth flow of our and/or our customers’ supply chains, increase transportation costs and/or decrease reliability. Global deterioration in economic conditions could also adversely and materially affect the ability of us and/or our customers to maintain liquidity and deploy network capital, with potential decreases in consumer spending contributing to liquidity risks, or even through regulatory interventions or pressure on pricing and services offered that may reduce revenue for periods of time. Any resulting financial difficulties could result in uncollectible accounts receivable or reduced revenue, despite having provided increased services. Resulting supply chain or operational difficulties (including site access) may also result in us being unable to meet the service level agreement targets under our MLAs. The loss of significant Tenants, or the loss of all or a portion of our anticipated Contracted Revenue from certain Tenants, could have a material adverse effect on our business, financial condition and/or results of operations.
Diesel prices have fluctuated significantly over time, often in parallel to changes in oil prices, and may fluctuate in the future as a result of many factors, including the impact of geopolitical tensions, for example, in connection with the current conflict between Russia and Ukraine and the related economic sanctions. We therefore remain exposed to diesel price volatility, which may result in substantial increases in our operating costs and reduced profits if prices rise significantly.
Through our international operations, we are also exposed to foreign exchange risk arising from currency exposures other than the US Dollar, such as the BRL, NGN, RWF, XAF, XOF, ZAR and ZMW currencies. Any fluctuations in these foreign currency exchange rates could result in a material adverse effect on the cash flow and future profits.
Outstanding balances and advances under certain of our existing credit facilities bear interest at rates which vary depending on certain underlying or reference rates, such as the Secured Overnight Financing Rate, or SOFR, the Chicago Mercantile Exchange (CME) Term SOFR, the European interbank offered rate, or EURIBOR, the Nigerian Monetary Policy Rate, or MPR, the Kuwait Interbank Offered Rate, or KIBOR, the Johannesburg Interbank Average Rate, or JIBAR, or the Brazilian interbank deposit rate, or CDI. Increases in such reference rates increase our interest expense, which could have a material adverse effect on our business, prospects, financial condition and/or results of operations. Such increases in interest rates could also have a material adverse effect on our cash flows and our ability to service our debt in the longer term.
In the past, governments have taken, and may in the future take, unprecedented actions in an attempt to address and rectify these extreme market and economic conditions by providing liquidity and stability to financial markets. If these actions are not successful, the return of adverse economic conditions may cause a significant impact on our ability and the ability of our customers to raise capital, if needed, on a timely basis and on acceptable terms or at all.
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To the extent that any macroeconomic issues could have a material adverse effect on our or our customers’ business, financial condition, results of operations and/or liquidity, it may also have the effect of heightening many of the other risks described in the “Item 3.D. Risk Factors” section of our Annual Report.
Key Financial and Operational Performance Indicators
We believe that revenue growth, Adjusted EBITDA, Adjusted EBITDA Margin, Return Adjusted EBITDA, the number of Towers in our portfolio and Colocation Rate are key measures to assess our financial and operational performance. These measures demonstrate our ability to grow and generate strong positive cash flows over time. Adjusted EBITDA and Adjusted EBITDA Margin are not measures defined by IFRS. The most directly comparable IFRS measure to Adjusted EBITDA is our profit/(loss) for the period. Adjusted EBITDA and Adjusted EBITDA Margin are not necessarily comparable to similarly referenced measures used by other companies. As a result, investors should not consider these performance measures in isolation from, or as a substitute analysis for, our results of operations as determined in accordance with IFRS.
Adjusted EBITDA, Adjusted EBITDA Margin and Return Adjusted EBITDA
We believe Adjusted EBITDA and Adjusted EBITDA Margin are useful to investors and are used by our management for measuring profitability and allocating resources, because they exclude the impact of certain items that have less bearing on our core operating performance such as interest expense and taxes. We believe that utilizing Adjusted EBITDA and Adjusted EBITDA Margin allows for a more meaningful comparison of operating fundamentals between companies within our industry by eliminating the impact of capital structure and taxation differences between the companies.
We believe Return Adjusted EBITDA is important to enable us to measure the effectiveness of our capital allocation strategy. This allows us to quantify how well we generate income relative to the capital we have invested in our business. We monitor the returns generated from capital we have deployed across the business.
We define Adjusted EBITDA (including by segment) as profit/(loss) for the period, before income tax expense/(benefit), finance costs and income, depreciation and amortization, impairment of withholding tax receivables, business combination transaction costs, impairment of property, plant and equipment, intangible assets excluding goodwill and related prepaid land rent on the decommissioning of sites, net (profit)/loss on sale of assets, share-based payment (credit)/expense, insurance claims, listing costs and certain other items that management believes are not indicative of the core performance of our business.
We define Adjusted EBITDA Margin as Adjusted EBITDA divided by revenue for the applicable period, expressed as a percentage.
We measure our return on invested capital by looking at Return Adjusted EBITDA for the period, which we define as Adjusted EBITDA further adjusted for lease payments made and amortization of prepaid site rent, less revenue withholding tax, income taxes paid, maintenance capital expenditures and routine capital expenditures, as a function of gross property, plant and equipment, gross intangibles and gross goodwill, as of the end of the period. Management uses this metric in order to measure the effectiveness of our capital allocation strategy. Return Adjusted EBITDA is not a measure defined by IFRS, and other companies may calculate Return Adjusted EBITDA or return on invested capital, differently. As a result, investors should not consider Return Adjusted EBITDA in isolation from, or as a substitute analysis for, our results of operations as determined in accordance with IFRS.
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The following is a reconciliation of Adjusted EBITDA, Return Adjusted EBITDA and Adjusted EBITDA margin to the most directly comparable IFRS measure which are loss and loss margin, respectively, for the years presented:
|
|
For the year ended December 31, |
||
|
|
2023 |
|
2022* |
|
|
$'000 |
|
$'000 |
|
|
|
|
|
Loss for the year |
|
(1,988,178) |
|
(468,966) |
Divided by total Revenue |
|
2,125,539 |
|
1,961,299 |
Loss margin for the year |
|
(93.5)% |
|
(23.9)% |
Adjustments: |
|
|
|
|
Income tax expense/(benefit) |
|
107,528 |
|
(75,013) |
Finance costs(a) |
|
2,436,511 |
|
872,049 |
Finance income(a) |
|
(25,209) |
|
(15,825) |
Depreciation and amortization |
|
435,586 |
|
468,904 |
Impairment of withholding tax receivables(b) |
|
47,992 |
|
52,334 |
Impairment of goodwill |
|
- |
|
121,596 |
Business combination transaction costs |
|
2,432 |
|
20,851 |
Impairment of property, plant and equipment, intangible assets excluding goodwill and related prepaid land rent(c) |
|
87,696 |
|
38,157 |
Net (gain)/loss on disposal of property, plant and equipment |
|
(3,806) |
|
3,382 |
Share-based payment expense(d) |
|
13,370 |
|
13,265 |
Insurance claims(e) |
|
(321) |
|
(2,092) |
Other costs(f) |
|
19,017 |
|
4,873 |
Other income(g) |
|
(83) |
|
(2,584) |
Adjusted EBITDA |
|
1,132,535 |
|
1,030,931 |
Divided by total Revenue |
|
2,125,539 |
|
1,961,299 |
Adjusted EBITDA Margin |
|
53.3% |
|
52.6% |
Lease payments made |
|
(135,013) |
|
(120,790) |
Amortization of prepaid site rent |
|
9,534 |
|
9,631 |
Withholding tax(b) |
|
(117,561) |
|
(116,147) |
Income taxes paid |
|
(45,411) |
|
(51,245) |
Maintenance capital expenditures(h) |
|
(139,958) |
|
(166,357) |
Corporate capital expenditures(i) |
|
(2,180) |
|
(3,369) |
Return Adjusted EBITDA |
|
701,946 |
|
582,654 |
Gross property, plant and equipment(j) |
|
2,938,489 |
|
3,736,078 |
Gross intangibles |
|
1,113,677 |
|
1,266,488 |
Gross goodwill |
|
751,026 |
|
885,639 |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
| (a) | Finance costs consist of interest expense and loan facility fees on borrowings, the unwinding of the discount on our decommissioning liability and lease liability, realized and unrealized net foreign exchange losses arising from financing arrangements and net realized and unrealized losses from valuations of financial instruments. Finance income consists of interest income from bank deposits, realized and unrealized net foreign exchange gains arising from financing arrangements and net realized and unrealized gains from valuations of financial instruments. |
| (b) | Revenue withholding tax primarily represents amounts withheld by customers in Nigeria and paid to the local tax authority. The amounts withheld may be recoverable through an offset against future corporate income tax liabilities in the relevant operating company. Revenue withholding tax receivables are reviewed for recoverability at each reporting period end and impaired if not forecast to be recoverable. |
| (c) | Represents non-cash charges related to the impairment of property, plant and equipment, intangible assets excluding goodwill and related prepaid land rent on the decommissioning of sites. |
| (d) | Represents credits and expense related to share-based compensation, which vary from period to period depending on timing of awards and changes to valuation inputs assumptions. |
| (e) | Represents insurance claims included as non-operating income. |
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| (f) | Other costs for the year ended December 31, 2023 included one-off consulting fees related to corporate structures and operating systems of $10.6 million, one-off consulting services of $1.7 million, costs related to internal reorganization of $4.7 million and one-off professional fees related to financing of $0.3 million. Other costs for the year ended December 31, 2022 included $2.3 million costs related to internal reorganization. |
| (g) | Other income for the year ended December 31, 2022, related to a tax indemnity receipt from a seller relating to a prior acquisition. |
| (h) | We incur capital expenditures in relation to the maintenance of our towers, which is non-discretionary in nature and required in order for us to optimally run our portfolio and to perform in line with our service level agreements with customers. Non-discretionary capital expenditure is non-revenue generating in nature and consists primarily of maintenance capital expenditure (including the periodic repair, refurbishment and replacement of tower and power equipment at existing sites to keep such assets in service), as well as routine corporate capital expenditure. |
| (i) | Corporate capital expenditures, which are non-discretionary in nature, consist primarily of routine spending on information technology infrastructure. |
| (j) | Excludes the cost of right-of-use assets resulting from leases accounted for under IFRS 16. |
Towers
We measure the number of towers in our portfolio at a given time by counting the number of towers that we own or operate with at least one Tenant. The number of towers in our portfolio excludes towers for which we provide Managed Services. We have historically increased the number of towers in our portfolio through a combination of building New Sites, along with the acquisition of towers from MNOs and an independent tower company. Rationalizing the portfolio through decommissioning towers reduces the number of towers we own and operate.
Colocation Rate
We define Colocation Rate as the average number of Tenants per tower that we own or operate across our tower portfolio at a given point in time, excluding Managed Services. Colocation Rate is an important metric for assessing utilization and capacity on existing Towers. Our Colocation Rate is a key driver of our Adjusted EBITDA Margin, as the addition of further Tenants increases revenue for a proportionally smaller increase in power, our primary variable cost per site. Colocation is achieved at a relatively low incremental capital expense, and is also attractive to our customers as it provides them with shorter deployment times for their equipment compared to New Site alternatives.
Explanation of key line items in the historical consolidated statements of income
Revenue
Our revenue is derived from fees paid by our customers for services from our Colocation business and its ancillary managed services. The Colocation business involves the lease of space on our owned and operated towers and our fixed copper and fiber network infrastructure, which are shared by various MNOs and other communications service providers. A portion of Colocation arrangements for the rental of space on the towers, other assets on tower sites, on which the use of space is dependent, and the use of fixed copper and fiber network infrastructure dedicated to an individual customer is within the scope of IFRS 16 “Leases”. A portion of Colocation arrangements for the provision of services, energy charges and use of shared fixed copper and fiber network infrastructure is within the scope of IFRS 15 “Revenue from Contracts with Customers” as a provision of service. Revenue from leasing arrangements is recognized on a straight-line basis over the current lease term of the related lease agreements when collectability is reasonably assured. We also derive revenue from non-lease services, which includes maintenance, security and power supply for Towers owned by third parties. Non-lease revenue is recognized as the service is delivered at an amount that reflects the consideration to which we expect to be entitled in exchange for those services. Such revenue is recognized in the accounting period in which the services are rendered. We assess the probability that defaulting customers will not settle amounts billed and accordingly treat any component that we deem may not be collected as variable consideration, contingent upon the receipt of funds from the customer, an event that is not wholly within our control.
Cost of sales
Cost of sales consists of power generation (including diesel costs), which after depreciation, is our largest single cost item, ground lease rental, tower repairs and maintenance, depreciation and amortization in relation to sites and right of use assets, impairment of property, plant and equipment, intangible assets excluding goodwill and prepaid land rent, staff costs and other costs directly related to the provision of services to customers and other site related costs, such as security services, regulatory permits and license costs, insurance, including for customer and network related assets.
98
Depreciation of a tower is calculated using the straight-line method over an estimated useful life of 10 to 20 years. Depreciation of alarms, batteries and generators are also calculated using the straight-line method over a range of estimated useful lives between one and five years, depending on the equipment. Right of use assets are depreciated on a straight-line basis over the shorter of the remaining estimated useful life of the tower and the lease term.
Administrative expenses
Administrative expenses are costs not directly related to provision of services to customers, but which support our business as a whole. These overhead expenses primarily consist of administrative staff costs (including key management compensation), office rent and related property expenses, insurance, travel costs, professional fees, depreciation and amortization of administrative assets and right of use assets where such assets are leased, net loss or gains from sale of assets, allowance for trade and other receivables and other sundry costs. Administrative expenses also includes other corporate overhead expenses related to our acquisition efforts and costs associated with new business initiatives.
Loss allowance on trade receivables
We account for our trade receivables credit risk by appropriately providing for expected credit losses. Loss allowance on trade receivables represents the expected loss from non-payment of amounts due from customers in accordance with the accounting standards applicable to each period. The loss allowance is determined based on our policy for evaluating expected credit losses and any subsequent impairment taking into account historical loss rates, the available information on a customer’s financial position and forward-looking macroeconomic data.
Other income
Other income includes proceeds from insurance claims.
Finance costs and income
Finance costs consist of interest expense and loan facility fees on borrowings, the unwinding of the discount on our decommissioning liability and lease liability, realized and unrealized net foreign exchange losses arising from financing arrangements and net realized and unrealized losses from valuations of financial instruments. Finance income consists of interest income from bank deposits, realized and unrealized net foreign exchange gains arising from financing arrangements and net realized and unrealized gains from valuations of financial instruments.
Taxation
Taxation consists of income tax, education tax and deferred taxes. Income tax is calculated at the domestic tax rate applicable to profits in our respective countries of business. Current and deferred tax is recognized on taxes that are regarded as taxes on corporate income under relevant IFRS accounting standards. This includes Nigerian education tax, which arises at the rate of 3.0% (2022: 2.5%) on taxable profits determined on a basis similar to income tax.
Deferred income tax assets are recognized for deductible temporary differences, including tax losses carried forward, arising between the tax bases of assets and liabilities and their carrying amounts in the financial statements, but only to the extent that the realization of the related tax benefits are expected to be met through the reversal of taxable temporary differences and that it is probable that future taxable profits will be available against which the temporary differences can be utilized. As of December 31, 2023, in Nigeria and certain other jurisdictions that have taxable losses brought forward or arising in the present period, deferred tax assets in respect of those losses are recognized only to the extent they are forecast to be applied against (i) the reversal of taxable temporary differences, or (ii) additional forecast future taxable income.
99
Results of Operations
The table below shows our consolidated results of operations for the years ended December 31, 2023 and 2022.
|
|
For the year ended December 31, |
||
|
|
2023 |
|
2022* |
|
|
$’000 |
|
$’000 |
|
|
|
|
|
Revenue |
|
2,125,539 |
|
1,961,299 |
Cost of sales |
|
(1,183,306) |
|
(1,157,001) |
Administrative expenses |
|
(404,783) |
|
(501,175) |
(Net loss allowance)/net reversal of loss allowance on trade receivables |
|
(7,202) |
|
4,446 |
Other income |
|
404 |
|
4,676 |
Operating profit |
|
530,652 |
|
312,245 |
Finance income |
|
25,209 |
|
15,825 |
Finance costs |
|
(2,436,511) |
|
(872,049) |
Loss before income tax |
|
(1,880,650) |
|
(543,979) |
Income tax (expense)/benefit |
|
(107,528) |
|
75,013 |
Loss for the year |
|
(1,988,178) |
|
(468,966) |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
Impact of Nigerian Naira devaluation in mid-June 2023
In mid-June 2023, the Central Bank of Nigeria implemented steps to unify the Nigerian foreign exchange market by replacing the old regime of multiple exchange rate segments into a single Investors and Exporters (“I&E”) window within which foreign exchange transactions would be determined by market forces and which was subsequently renamed NAFEM (Nigeria Autonomous Foreign Exchange Market) in October 2023. The Group uses the USD/NGN rate published by Bloomberg, which is approximately aligned to the NAFEM window rate, for Group reporting purposes.
The NGN fell 59.4% between the period immediately prior to the announcement (June 14, 2023) and the month end rate as at June 30, 2023 and continues to experience volatility, having devalued further by 21.1% as at December 31, 2023. Due to the NGN devaluation, Revenue and segment Adjusted EBITDA were negatively impacted by $427.5 million and $264.7 million, respectively, in the second half year of 2023 when compared to the USD/NGN rate on June 1, 2023. This negative impact on Revenue and segment Adjusted EBITDA was partially offset by $191.4 million and $191.4 million, respectively, in contract resets during the same period.
Due to the timing of the devaluation, the average of the USD/NGN rate used to consolidate the Group results was NGN 815.0 for the three month period ended December 31, 2023 and NGN 638.0 for the year ended December 31, 2023, as opposed to the closing rate of NGN 911.7 on December 31, 2023.
The continued devaluation of the NGN in the three month period ended December 31, 2023 also resulted in an impact on finance costs, specifically related to unrealized foreign exchange losses on financing of $409.2 million in our Nigeria segment. This is due to the USD denominated historical internal shareholder loans from Group entities to Nigeria and USD denominated third party debt. As the functional currency of the Nigeria businesses is NGN, these USD balances have been revalued in NGN using the rate as of December 31, 2023 resulting in an increase in unrealized loss on foreign exchange.
Revenue
Our revenue was $2,125.5 million for the year ended December 31, 2023 compared to $1,961.3 million for the year ended December 31, 2022. Revenue increased by $164.2 million, or 8.4%, which includes organic growth of $723.1 million, or 36.9%, driven primarily by FX resets and escalations. Revenue for the year ended December 31, 2023, included $48.1 million of non-recurring revenue as adjusted for withholding tax from our smallest Key Customer in Nigeria for services previously provided but for which revenue had not been recognized. During the year ended December 31, 2022, non-recurring revenue of $18.0 million was recognized from reaching agreement on certain contractual terms with a Key Customer in Nigeria. Aggregate inorganic revenue growth was $56.8 million, or 2.9%, for the year ended December 31, 2023, driven by MTN SA Acquisition in May 2022, the GTS SP5 Acquisition in March 2022 and the fifth and sixth stages of the Kuwait Acquisition in September 2022 and August 2023, respectively.
100
The increase was partially offset by the non-core impact of negative movement in foreign exchange rates of $615.7 million, or 31.4%.
Refer to the revenue component of the segment results section of this operating and financial review for further details.
The net increase in Towers was 423 year-on-year, resulting in total Towers of 40,075 at December 31, 2023, and primarily resulted from the addition of 101 Towers from the sixth closing of the Kuwait Acquisition, and 1,477 New Sites offset by 1,074 Churned and 90 decommissioned. We added 1,329 net new Tenants year-on-year, resulting in total Tenants of 59,727 and a Colocation Rate of 1.49x at December 31, 2023. Year-on-year, we added 4,929 Lease Amendments, resulting in total Lease Amendments of 36,603 at December 31, 2023.
Our net increase in Towers and Tenants for the year ended December 31, 2023, includes the impact of the start of a rationalization program agreed with a Key Customer, which resulted in the net rationalization of 755 Towers and a total of 731 tenants.
Cost of Sales
Our cost of sales was $1,183.3 million for the year ended December 31, 2023, compared to $1,157.0 million for the year ended December 31, 2022.
The table below shows our cost of sales for the years ended December 31, 2023 and 2022:
|
|
For the year ended December 31, |
||
|
|
2023 |
|
2022* |
|
|
$’000 |
|
$’000 |
|
|
|
|
|
Power generation |
|
396,714 |
|
419,151 |
Depreciation** |
|
373,889 |
|
411,579 |
Tower repairs and maintenance |
|
96,258 |
|
90,126 |
Impairment of property, plant and equipment, intangible assets excluding goodwill and prepaid land rent |
|
87,696 |
|
38,157 |
Amortization |
|
44,618 |
|
42,050 |
Security services |
|
42,512 |
|
43,448 |
Site regulatory permits |
|
37,502 |
|
33,999 |
Staff costs |
|
33,149 |
|
33,229 |
Travel costs |
|
9,700 |
|
5,343 |
Short term site rental |
|
8,613 |
|
14,111 |
Insurance |
|
4,648 |
|
5,109 |
Professional fees |
|
2,570 |
|
3,460 |
Short term other rent |
|
2,266 |
|
2,813 |
Vehicle maintenance and repairs |
|
2,184 |
|
1,968 |
Other |
|
40,987 |
|
12,458 |
|
|
1,183,306 |
|
1,157,001 |
Foreign exchange gains and losses on cost of sales are included in Other.
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
**Presented net of related indirect tax receivable in Brazil of $1.3 million (2022: $0.9 million, 2021: $0.4 million).
The increase in cost of sales of $26.3 million, or 2.3%, in the year ended December 31, 2023 compared to the year ended December 31, 2022, is primarily due to increased costs related to impairment of property, plant and equipment, intangible assets excluding goodwill and prepaid land rent, other costs, tower repairs and maintenance, travel costs and site regulatory permits. This year-on-year increase is partially offset by decreases in costs related to aggregate depreciation and amortization, power generation and short term site rental. See below for further details.
Power generation costs decreased by $22.4 million, of which $50.4 million of the movement related to diesel costs, partially offset by an increase in electricity costs of $28.0 million, for the year ended December 31, 2023, compared to the year ended December 31, 2022.
101
This is primarily due to a year-on-year cost decrease in our Nigeria segment driven by a year-on-year decrease in the diesel price per liter in U.S. Dollars of 13.1% and an overall consumption decrease of 6.2% partially offset by the increase in electricity cost as a result of Project Green.
Aggregate depreciation and amortization decreased by $35.1 million for the year ended December 31, 2023. This is primarily due to a year-on-year decrease in depreciation and amortization for our Nigeria segment of $71.3 million primarily driven from a decrease in the asset base of our Nigeria segment. This decrease was partially offset by an increase in depreciation and amortization of $16.2 million and $7.5 million in our SSA and Latam segment, respectively.
Tower repairs and maintenance costs increased in the year ended December 31, 2023, compared to the year ended December 31, 2022, by $6.1 million, primarily driven by $11.2 million in our SSA segment partially offset by $6.7 million in our Nigeria segment.
Impairment of property, plant and equipment, intangible assets excluding goodwill and prepaid land rent increased by $49.5 million for the year ended December 31, 2023, primarily resulting from a year-on-year increase of $68.0 million in our SSA segment primarily driven by power equipment assets in our SSA segment being classified as assets held for sale and remeasured at fair value less costs to sell. This is partially offset by a decrease of $22.4 million in our Nigeria segment primarily driven by the reassessment of our impairment provision related to tower and tower equipment in the year.
Short term rental costs decreased by $5.5 million in the year ended December 31, 2023, compared to the year ended December 31, 2022. This is primarily driven by our Latam segment.
Remaining cost of sales line items increased in aggregate by $33.6 million in the year ended December 31, 2023 compared to the year ended December 31, 2022 primarily due to an increase in other costs (primarily driven by unrealized foreign exchange losses in Nigeria), travel costs and regulatory permits, partially offset by decreases in security services, professional fees and insurance costs.
Administrative Expenses
Our administrative expenses were $404.8 million for the year ended December 31, 2023, compared to $501.2 million for the year ended December 31, 2022.
The table below shows our administrative expenses for the years ended December 31, 2023 and 2022:
|
|
For the year ended December 31, |
||
|
|
2023 |
|
2022* |
|
|
$’000 |
|
$’000 |
|
|
|
|
|
Staff costs |
|
156,602 |
|
132,399 |
Professional fees |
|
61,094 |
|
38,964 |
Impairment of withholding tax receivables* |
|
47,992 |
|
52,334 |
Facilities, short term rental and upkeep |
|
43,616 |
|
34,203 |
Key management compensation |
|
18,508 |
|
21,703 |
Travel costs |
|
14,124 |
|
15,535 |
Share-based payment expense |
|
13,370 |
|
13,265 |
Depreciation |
|
11,314 |
|
9,995 |
Amortization |
|
5,765 |
|
5,280 |
Business combination transaction costs |
|
2,432 |
|
20,851 |
Impairment of goodwill |
|
- |
|
121,596 |
Operating taxes |
|
(1,005) |
|
963 |
Net (gain)/loss on disposal of property, plant and equipment |
|
(3,806) |
|
3,382 |
Other |
|
34,777 |
|
30,705 |
|
|
404,783 |
|
501,175 |
Foreign exchange gains and losses on administrative expenses are included in Other.
*Withholding tax receivables were impaired following the Group’s assessment of the recoverability of withholding tax assets based on a five-year cash flow projection and an analysis of the utilization of withholding tax balances against future income tax liabilities.
102
Administrative expenses for the year ended December 31, 2023, decreased by $96.4 million, or 19.2%, which was primarily due to decreases in impairment of goodwill costs, business combination transaction costs, impairment of withholding tax receivables and an increase in net gain on disposal of property, plant and equipment, partially offset by an increase in staff costs, professional fees and rent and facilities costs.
Staff costs increased by $24.2 million to $156.6 million in the year ended December 31, 2023 from $132.4 million in the year ended December 31, 2022, primarily due to the increased headcount in our Latam and SSA segments, and internal restructuring costs in our Group entities.
Professional fees increased by $22.1 million to $61.1 million in the year ended December 31, 2023, from $39.0 million in the year ended December 31, 2022, primarily due to an increase in consulting and audit costs.
Impairment of withholding tax receivables decreased by $4.3 million to $48.0 million in the year ended December 31, 2023 from $52.3 million in the year ended December 31, 2022, which primarily related to our Nigeria segment.
Rent and facilities costs increased by $9.4 million to $43.6 million in the year ended December 31, 2023, from $34.2 million in the year ended December 31, 2022, primarily driven by an increase in repairs and maintenance in our Nigeria segment.
There was no impairment of goodwill in the year ended December 31, 2023 as compared to an impairment of goodwill of $121.6 million in the year ended December 31, 2022 related solely to our Latam segment. Business combination transaction costs decreased by $18.4 million to $2.4 million in the year ended December 31, 2023, from $20.9 million in the year ended December 31, 2022 due to fewer acquisitions in the year ended December 31, 2023 compared to year ended December 31, 2022.
Net gain on disposal of property, plant and equipment has increased by $7.2 million to net gain of $3.8 million in the year ended December 31, 2023, from a net loss of $3.4 million in the year ended December 31, 2022, which primarily resulted from a year-on-year decrease in net loss on disposal of property, plant and equipment of $4.4 million in our Nigeria segment after completing an assessment of assets verification during the year ended December 31, 2022 resulting in a disposal of assets.
Other administrative expense items decreased by $1.9 million to $95.5 million in the year ended December 31, 2023, from $97.4 million in the year ended December 31, 2022.
Loss Allowance on Trade Receivables
We had a loss allowance on trade receivables of $7.2 million for the year ended December 31, 2023, compared to a net reversal of loss allowance on trade receivables of $4.4 million for the year ended December 31, 2022, a year-on-year negative movement of $11.6 million. This is primarily driven from our Nigeria segment of $6.2 million, SSA segment of $2.8 million and Latam segment of $2.6 million.
Other Income
Other income decreased by $4.3 million to $0.4 million for the year ended December 31, 2023, compared to $4.7 million for the year ended December 31, 2022. The year ended December 31, 2022, includes a one-off amount of $2.5 million in relation to a tax indemnity receipt from a seller relating to a prior acquisition.
Net Finance Income/Costs
Our net finance costs were $2,411.3 million for the year ended December 31, 2023, compared to $856.2 million for the year ended December 31, 2022.
103
The table below shows our net finance costs for the years ended December 31, 2023 and 2022:
|
|
For the year ended December 31, |
||
|
|
2023 |
|
2022* |
|
|
$’000 |
|
$’000 |
|
|
|
|
|
Interest income—bank deposits |
|
25,008 |
|
15,170 |
Net foreign exchange gain on derivative instruments—realized |
|
38 |
|
655 |
Fair value gain on embedded options and interest rate caps |
|
163 |
|
- |
|
|
25,209 |
|
15,825 |
|
|
|
|
|
Interest expenses - third party loans |
|
362,381 |
|
256,208 |
Interest expenses - withholding tax paid on bond interest |
|
13,439 |
|
12,197 |
Unwinding of discount on decommissioning liability |
|
9,156 |
|
7,084 |
Interest and finance charges paid/payable for lease liabilities |
|
61,617 |
|
52,234 |
Net foreign exchange loss arising from financing - unrealized |
|
1,713,242 |
|
157,836 |
Net foreign exchange loss arising from financing - realized |
|
162,944 |
|
206,329 |
Fair value loss on embedded options and interest rate caps |
|
3,760 |
|
159,889 |
Fees on loans and financial derivatives |
|
17,821 |
|
18,673 |
Net foreign exchange loss on derivative instruments - unrealized |
|
92,151 |
|
1,599 |
|
|
2,436,511 |
|
872,049 |
|
|
|
|
|
Net finance costs |
|
(2,411,302) |
|
(856,224) |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
Net finance costs increased by $1,564.5 million, or 179.4%, in the year ended December 31, 2023 compared to the year ended December 31, 2022, primarily due an increase of $1,512.0 million in net foreign exchange losses arising from financing (realized and unrealized) which resulted primarily from the significant devaluation of the NGN in relation to USD denominated intercompany debt in Nigeria. The increase in net finance costs was also due to an increase in interest expense on third party loans of $106.2 million and an increase in net foreign exchange losses on derivative instruments (realized and unrealized) of $91.2 million. The increase in net finance costs was partially offset by the favorable movement year-on-year from the significant decrease in fair value loss on embedded options within the IHS Holding Limited Notes and 2027 Notes of $156.1 million.
Foreign exchange movements arise on commercial bank loans, intercompany loans and letters of credit denominated in U.S. dollars at the subsidiary level as a result of loan revaluations in local functional currency at period ends. The net foreign exchange loss arising from financing and the net foreign exchange loss on derivative instruments was $1,876.2 million and $92.2 million, respectively, for the year ended December 31, 2023, compared to a net foreign exchange loss arising from financing and a net foreign exchange loss on derivative instruments of $364.2 million and $0.9 million, respectively, in the year ended December 31, 2022. This resulted in a year-on-year increase in net foreign exchange loss arising from financing and an increase in net foreign exchange loss on derivative instruments of $1,512.0 million and $91.2 million, respectively. These net foreign exchange losses in the year ended December 31, 2022, were primarily due to changes in exchange rates, predominantly between the NGN, RWF, XAF, XOF, ZAR and ZMW currencies which depreciated against the U.S. dollar and the BRL which appreciated against the U.S. dollar. The net foreign exchange loss arising from financing and the net foreign exchange loss on derivative instruments in the year ended December 31, 2023, were primarily due to the significant devaluation of the NGN which depreciated against the U.S. dollar from NGN 461.5 to $1.0 to NGN 911.7 to $1.0 for the year period ended December 31, 2023, due to the unification of the Nigerian foreign exchange market by replacing the old regime of multiple exchange rate segments into a single Investors’ and I&E window within which foreign exchange transactions would be determined by market forces. The I&E window was subsequently renamed the NAFEM in October 2023. Depreciation of the RWF, ZAR and ZMW against the U.S. dollar also contributed to the net foreign exchange loss arising from financing during the year ended December 31, 2023.
The year-on-year increase of $106.2 million in interest expense on third party loans resulted primarily from the effect of interest incurred on the Nigeria 2023 Term Loan, the IHS Holding 2022 Term Loan, the IHS SA STL Facility and the I-Systems Facility, as well as from the additional drawdown of the IHS SA Facility.
104
The year-on-year decrease of $156.1 million in fair value loss on embedded options within the IHS Holding Notes and 2027 Notes was due primarily to a significant decrease in the market value of the call options in the year ended December 30, 2023 compared to the year ended December 31, 2022, which resulted in a significant fair value loss for the comparative period.
Income Tax Expense/(Benefit)
Our current income tax expense was $114.4 million for the year ended December 31, 2023, compared to a current income tax expense of $108.8 million for the year ended December 31, 2022.
We had a deferred income tax benefit of $6.9 million for the year ended December 31, 2023, compared to a deferred tax benefit of $183.9 million for the year ended December 31, 2022.
The table below shows our income tax expense for the years ended December 31, 2023 and 2022:
|
|
For the year ended December 31, |
||
|
|
2023 |
|
2022* |
|
|
$’000 |
|
$’000 |
|
|
|
|
|
Current taxes on income |
|
114,430 |
|
108,842 |
Deferred income taxes |
|
(6,902) |
|
(183,855) |
Total taxes |
|
107,528 |
|
(75,013) |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
The year-on-year increase of $5.6 million in current income tax expense, resulting in a current tax expense of $114.4 million for the year ended December 31, 2023, compared to a current income tax expense of $108.8 million for the year ended December 31, 2022. The increase was primarily due to increases in our Nigeria segment of $1.5 million and Group entities of $5.4 million, which primarily related to an increase in the group uncertain tax position provision. This was partially offset by a decrease in current income tax expense of $1.3 million in our Latam segment.
The year-on-year decrease of $177.0 million in deferred tax benefit, resulting in a deferred tax benefit of $6.9 million for the year ended December 31, 2023, compared to a deferred tax benefit of $183.9 million for the year ended December 31, 2023. The decrease was primarily due to decreases in deferred tax benefits in our Latam segment and Nigeria segment of $172.1 million and $12.1 million, respectively, which was primarily due to a deferred tax benefit in our Latam segment in the year ended December 31, 2022, related to acquisitions which did not recur in the year ended December 31, 2023, and reductions in the levels of deferred tax liabilities recognised in Nigeria principally due to the devaluation of the Naira. This was partially offset by an increase in deferred tax benefits of $7.8 million in Group entities.
Loss for the Year
Loss for the period was $1,988.2 million for the year ended December 31, 2023 compared to a loss of $469.0 million for the year ended December 31, 2022. The increase in loss for the period reflects the significant impact of an increase in net finance costs, specifically related to the unrealized foreign exchange losses on financing of $1,555.4 million. This is driven by the significant devaluation of the NGN as a result of the USD denominated historic shareholder loans from Group entities to Nigeria and USD denominated third party debt. As the functional currency of our Nigeria businesses is NGN, these USD balances have been revalued in NGN, resulting in the significant unrealized loss on foreign exchange.
105
Segment Results:
Revenue:
Revenue for each of our reportable segments was as follows:
|
|
For the year ended December 31, |
|
|
|
|
|
||
|
|
2023 |
|
2022 |
|
Change |
|
Change |
|
|
|
$'000 |
|
$'000 |
|
$'000 |
|
% |
|
|
|
|
|
|
|
|
|
|
|
Nigeria |
|
1,381,627 |
|
1,352,402 |
|
29,225 |
|
2.2 |
% |
SSA |
|
503,049 |
|
412,824 |
|
90,225 |
|
21.9 |
% |
Latam |
|
200,207 |
|
160,008 |
|
40,199 |
|
25.1 |
% |
MENA |
|
40,656 |
|
36,065 |
|
4,591 |
|
12.7 |
% |
Total revenue |
|
2,125,539 |
|
1,961,299 |
|
164,240 |
|
8.4 |
% |
Nigeria
Revenue for our Nigeria segment increased by $29.2 million, or 2.2%, to $1,381.6 million for the year ended December 31, 2023, compared to $1,352.4 million for the year ended December 31, 2022. Revenue increased organically by $629.3 million, or 46.5%, driven primarily by an increase in foreign exchange resets, escalations, Lease Amendments, new Colocation, fiber and New Sites. Revenue for our Nigeria segment for the year ended December 31, 2023 included non-recurring revenue of $48.1 million. The increase in organic revenue was largely offset by the impact of negative movements in the Naira to U.S. dollar foreign exchange rate of $600.1 million, or 44.4%. Year-on-year, within our Nigeria segment, Tenants decreased by 201, primarily driven by 942 Churned (which includes, from the first quarter of 2023, 727 towers occupied by our smallest Key Customer on which we were not recognizing revenue), partially offset by 504 Colocation and 237 New Sites, while Lease Amendments increased by 3,781.
SSA
Revenue for our SSA segment increased by $90.2 million, or 21.9%, to $503.1 million for the year ended December 31, 2023, compared to $412.8 million for the year ended December 31, 2022. Revenue increased organically by $65.6 million, or 15.9%, driven primarily by an increase in escalations, New Sites and new Colocation. Revenue for our SSA segment also grew inorganically in the period by $46.6 million, or 11.3%, mainly from the completion of the MTN SA Acquisition. The increase in revenue was partially offset by the year-on-year negative impact of movements in foreign exchange rates of $22.0 million, or 5.3%. Year-on-year, within our SSA segment, Tenants increased by 557 including 226 from New Sites and 330 from Colocation, while Lease Amendments increased by 1,030.
Latam
Revenue for our Latam segment increased by $40.2 million, or 25.1%, to $200.2 million for the year ended December 31, 2023, compared to $160.0 million for the year ended December 31, 2022. Revenue increased organically by $25.2 million, or 15.7%, primarily driven through revenue growth from fiber and escalations. Revenue for our Latam segment grew inorganically in the period by $8.5 million, or 5.3%, which primarily includes the impact of the GTS SP5 Acquisition. Revenue also increased by $6.5 million, or 4.1%, as a result of favorable movements in foreign exchange rates. Year-on-year, within our Latam segment, Tenants increased by 648, including 828 from New Sites and 206 Colocations, partially offset by 386 Churned, while Lease Amendments increased by 118.
MENA
Revenue for our MENA segment increased by $4.6 million, or 12.7%, to $40.7 million for the year ended December 31, 2023, compared to $36.1 million for the year ended December 31, 2022. Revenue increased organically by $3.0 million, or 8.3%, primarily driven by New Sites and escalations and grew inorganically in the period by $1.7 million, or 4.6%. The increase in organic revenue was partially offset by the impact of negative movements in the Kuwaiti Dinar to U.S. dollar foreign exchange rate of $0.1 million, or 0.2%. Year-on-year, within our MENA segment, Tenants increased by 150, including 109 from the closing of the sixth closing of the Kuwait Acquisition in the third quarter of 2023 and 47 from New Sites.
106
Segment Adjusted EBITDA:
Segment Adjusted EBITDA, our key profitability measure used to assess the performance of our reportable segments, for each of our reportable segments was as follows:
|
|
For the year ended December 31, |
|
|
|
|
|
||
|
|
2023 |
|
2022 |
|
Change |
|
Change |
|
|
|
$'000 |
|
$'000 |
|
$'000 |
|
% |
|
|
|
|
|
|
|
|
|
|
|
Nigeria |
|
855,317 |
|
802,822 |
|
52,495 |
|
6.5 |
% |
SSA |
|
257,072 |
|
230,066 |
|
27,006 |
|
11.7 |
% |
Latam |
|
145,754 |
|
114,434 |
|
31,320 |
|
27.4 |
% |
MENA |
|
22,121 |
|
16,021 |
|
6,100 |
|
38.1 |
% |
Other |
|
(147,729) |
|
(132,412) |
|
(15,317) |
|
(11.6) |
% |
Total Segment Adjusted EBITDA |
|
1,132,535 |
|
1,030,931 |
|
101,604 |
|
9.9 |
% |
Nigeria
Segment Adjusted EBITDA for our Nigeria segment was $855.3 million for the year ended December 31, 2023 compared to $802.8 million for the year ended December 31, 2022, an increase of $52.5 million, or 6.5%. The increase in segment Adjusted EBITDA primarily reflected the increase in revenue discussed above together with a decrease in cost of sales of $40.2 million. The decrease in cost of sales is primarily driven by the $61.7 million lower pricing in diesel expenses offset by the negative foreign exchange impact discussed above.
SSA
Segment Adjusted EBITDA for our SSA segment was $257.1 million for the year ended December 31, 2023 compared to $230.1 million for the year ended December 31, 2022, an increase of $27.0 million, or 11.7%. The increase in segment Adjusted EBITDA primarily reflected the revenue discussed above, partially offset by the increase in cost of sales resulting from higher power generation cost, diesel cost and maintenance cost of $20.9 million, $11.4 million and $11.4 million, respectively, and increase in administrative expenses of $6.4 million mainly as a result of an increase in staff costs of $2.4 million.
Latam
Segment Adjusted EBITDA for our Latam segment was $145.8 million for the year ended December 31, 2023 compared to $114.4 million for the year ended December 31, 2022, an increase of $31.3 million, or 27.4%. The increase was primarily due to an increase in revenue explained above, partially offset by an increase in electricity and maintenance within cost of sales of $2.6 million and $1.3 million, respectively, and an increase in administrative expenses of $11.9 million, mainly as a result of an increase in staff costs of $7.5 million.
MENA
Segment Adjusted EBITDA for our MENA segment was $22.1 million for the year ended December 31, 2023 compared to $16.0 million for the year ended December 31, 2022, an increase of $6.1 million, or 38.1%. The increase was primarily due to an increase in revenue explained above, as well as the decrease in cost of sales of $1.8 million. The decrease in cost of sales is primarily due to the decrease of $1.1 million in rent expense.
107
Capital Expenditure:
Capital expenditure for each of our reportable segments was as follows:
|
|
For the year ended December 31, |
|
|
|
|
|
||
|
|
2023 |
|
2022 |
|
Change |
|
Change |
|
|
|
$'000 |
|
$'000 |
|
$'000 |
|
% |
|
|
|
|
|
|
|
|
|
|
|
Nigeria |
|
316,221 |
|
404,628 |
|
(88,407) |
|
(21.8) |
% |
SSA |
|
73,769 |
|
97,750 |
|
(23,980) |
|
(24.5) |
% |
Latam |
|
187,803 |
|
121,158 |
|
66,645 |
|
55.0 |
% |
MENA |
|
5,855 |
|
6,974 |
|
(1,120) |
|
(16.1) |
% |
Other |
|
2,399 |
|
2,960 |
|
(561) |
|
(19.0) |
% |
Total capital expenditure |
|
586,046 |
|
633,470 |
|
(47,424) |
|
(7.5) |
% |
Nigeria
Capital expenditure for our Nigeria segment was $316.2 million for the year ended December 31, 2023 compared to $404.6 million for the year ended December 31, 2022, a decrease of $88.4 million, or 21.8%. The decrease was primarily due to decreases in New Site capital expenditure of $35.4 million, other capital expenditure of $30.0 million, maintenance capital expenditure of $26.3 million, purchase of land for new or existing sites of $7.6 million and capital expenditure related to Project Green of $2.3 million, partially offset by an increase in augmentation capital expenditure of $12.0 million.
SSA
Capital expenditure for our Sub-Saharan Africa segment was $73.8 million for the year ended December 31, 2023 compared to $97.8 million for the year ended December 31, 2022, a decrease of $24.0 million, or 24.5%. The decrease was primarily due to decreases in other capital expenditure of $15.8 million, New Site capital expenditure of $4.6 million and augmentation capital expenditure of $3.0 million.
Latam
Capital expenditure for our Latam segment was $187.8 million for the year ended December 31, 2023 compared to $121.2 million for the year ended December 31, 2022, an increase of $66.6 million, or 55.0%. The year-on-year increase was primarily due to increases in New Site capital expenditure of $46.5 million, corporate capital expenditure of $6.9 million, purchase of land for new or existing sites of $4.0 million, fiber business capital expenditure of $3.4 million and augmentation capital expenditure of $3.1 million.
MENA
Capital expenditure for our MENA segment was $5.9 million for the year ended December 31, 2023 compared to $7.0 million for the year ended December 31, 2022, a decrease of $1.1 million, or 16.1%. The year-on-year decrease was primarily due to decreases in New Site capital expenditure of $1.6 million and refurbishment capital expenditure of $0.7 million, partially offset by increases in maintenance capital expenditure of $0.6 million, capital expenditure related to Project Green of $0.3 million and other capital expenditure of $0.3 million.
B. Liquidity and Capital Resources
Overview
We generally fund our operations, which include operating expenses and debt service requirements (principal and interest payments), through cash flow from operating activities. We have historically funded acquisitions and other investments in our business, including large scale New Site construction and site improvements, from a combination of external equity raised from shareholders, long-term debt financings and internally generated cash from operations. External equity funding was raised at the IHS Holding Limited level, where it was held in U.S. dollars until required by operating subsidiaries or for acquisitions. As and when operating subsidiaries required these funds, the funding was allocated typically through intercompany loans to those subsidiaries. The proportion of intercompany loans to equity is unique to each operation and determined by commercial funding requirements, local taxation and corporate legislation.
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As of December 31, 2023, we had $816.3 million of total liquidity, which was equal to our unrestricted cash and cash equivalents of $293.8 million and availability under the IHS Holding RCF and the IHS Holding 2022 Term Loan of $300.0 million and $130.0 million, respectively, and approximately $92.5 million of availability under the Nigeria RCF and other loan facilities within the Group collectively (see “— Indebtedness” for more information). Our centralized treasury team supervises our cash management. Our cash and cash equivalents are generated within our operating subsidiaries and held either locally or up-streamed to IHS Holding Limited (or intermediaries thereof). As a holding company, our only source of cash to pay our obligations will be distributions with respect to our ownership interests in our subsidiaries or repayment of intercompany loans from (i) the net earnings and cash flow generated by these subsidiaries and (ii) any excess funds from the refinancing of operating company debt financings.
We believe that our available liquidity and cash from operations will be sufficient to satisfy our operating expenses, debt service, capital expenditure requirements and organic growth strategies for a period of at least 12 months from the date of issuance of these results. However, our ability to satisfy our operating expenses, debt service, capital requirements and growth strategies will depend on our future performance, which is subject to general economic, financial, competitive, regulatory and other factors, including those described in the “Risk Factors” section of our Annual Report. If we are unable to generate sufficient cash flow from operating activities in the future, we may have to obtain additional financing. If we obtain additional capital by issuing equity, the current interests of our existing shareholders will be diluted. If we incur additional indebtedness, that indebtedness may contain significant financial and other covenants that may significantly restrict our operations. There can be no assurance that such financing will be available to us on commercially reasonable terms or at all.
Additionally, we continuously review our capital structure as well as our funding and maturity profile. As part of this review, we regularly explore opportunities in the global capital markets to try to optimize our funding profile and our mix of funding sources, as well as to try to ensure that we are well positioned to avail ourselves of any refinancing or other opportunities, including for our 2027 Notes and our other facilities. We may also, from time to time, consider debt and/or equity repurchase programs, whether in the open market or otherwise, subject to market conditions. During the third quarter of 2023, the Company repurchased 948,101 shares for $4.8 million under its $50.0 million stock repurchase plan. During the three month period ended December 31, 2023, the Company repurchased a further 930,556 shares for $5.2 million. All shares repurchased were canceled.
Statements of cash flows
|
|
For the year ended December 31, |
||
|
|
2023 |
|
2022 |
|
|
$’000 |
|
$’000 |
|
|
|
|
|
Net cash generated from operating activities |
|
853,453 |
|
907,303 |
Net cash used in investing activities |
|
(722,249) |
|
(1,517,288) |
Net cash (used in)/generated from financing activities |
|
(162,301) |
|
398,241 |
Net decrease in cash and cash equivalents |
|
(31,097) |
|
(211,744) |
Cash and cash equivalents at beginning of year |
|
514,078 |
|
916,488 |
Effect of movements in exchange rates on cash |
|
(189,158) |
|
(190,666) |
Cash and cash equivalents at end of year |
|
293,823 |
|
514,078 |
Net cash generated from operating activities
Net cash generated from operating activities decreased by $53.9 million year-on year in the year ended December 31, 2023, to $853.5 million, from $907.3 million in the year ended December 31, 2022. The year-on-year decrease was primarily due to a decrease in cash from operations of $64.0 million as a result of an increase in cash outflows related to working capital changes, mainly driven by a year-on-year decrease in trade and other payables and an increase in trade and other receivables, partially offset by a decrease in inventories. The increase in cash outflows related to working capital changes was partially offset by an increase in operating profit.
Net cash used in investing activities
Net cash used in investing activities decreased by $795.0 million, to $722.2 million in the year ended December 31, 2023, from $1,517.3 million in the year ended December 31, 2022, primarily due to an decrease in cash consideration paid for business combinations, net of cash acquired of $731.3 million and an increase in net short term deposits of $94.0 million, partially offset by an increase in capital expenditure for property, plant and equipment (including advance payments) of $32.3 million.
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The year-on-year decrease in cash paid for business acquisitions is due to larger expenditures in the year ended December 31, 2022 for the GTS SP5 Acquisition and MTN SA Acquisition.
Net cash used in/generated from financing activities
Net cash used in financing activities increased by $560.5 million, to net cash used in financing activities of $162.3 million in the year ended December 31, 2023, from net cash generated from financing activities of $398.2 million in the year ended December 31, 2022. The year-on-year increase in cash outflow is primarily due to a decrease in loans received from third parties net of principal repayments of $460.1 million and an increase in interest paid on third party loans of $64.5 million.
Indebtedness
Approximate U.S. dollar equivalent values for non-USD denominated facilities stated below are translated from the currency of the debt at the relevant exchange rates on December 31, 2023.
IHS Holding (2020) Revolving Credit Facility
IHS Holding Limited is party to a $300.0 million revolving credit facility agreement, originally entered into in March 2020 (as amended and/or restated from time to time, including pursuant to an amendment and restatement agreement entered into in June 2021 and November 2023) (the “IHS Holding RCF”) and entered into between, amongst others, IHS Holding Limited as borrower, IHS Netherlands Holdco B.V., IHS Netherlands NG1 B.V., IHS Towers NG Limited, IHS Netherlands NG2 B.V., Nigeria Tower Interco B.V., INT Towers Limited and IHS Nigeria as guarantors, Citibank Europe PLC, UK Branch as facility agent and certain financial institutions listed therein as original lenders.
The interest rate under the IHS Holding RCF is equal to a compounded reference rate based on SOFR (calculated on a five Risk-Free Rate, or RFR, banking day lookback), and a credit adjustment spread plus a margin of 3.00% per annum. IHS Holding Limited also pays certain other fees and costs, including fees for undrawn commitments, utilization and agent fees.
Funds borrowed under the IHS Holding RCF can be applied towards general corporate purposes including, but not limited to, the financing of (a) New Site programs and (b) the repayment of indebtedness (including interest and fees on that indebtedness).
Subject to certain conditions, IHS Holding Limited may voluntarily prepay its utilizations and/or permanently cancel all or part of the available commitments by giving five RFR banking days’ prior notice, or in any case any such shorter period as the majority lenders may agree. In addition to voluntary prepayments, the IHS Holding RCF requires mandatory cancellation, and if applicable, prepayment in full or in part in certain circumstances, including, but not limited to: (i) with respect to any lender, if it becomes unlawful for such lender to perform any of its obligations under the IHS Holding RCF; and (ii) upon the occurrence of a change of control as defined in the IHS Holding RCF.
The IHS Holding RCF contains customary information undertakings, affirmative covenants and negative covenants (including, without limitation, a negative pledge), in each case subject to certain agreed exceptions and materiality carve-outs). The covenants include an interest cover ratio (the ratio of EBITDA for the relevant period to interest expense for the relevant period) and a leverage ratio (the ratio of net financial debt for the relevant period to EBITDA in respect of that relevant period) as financial covenants. These financial covenants are tested quarterly (except where compliance is required at any time and where testing is required upon incurrence) in arrear based on the previous 12 months, by reference to the financial statements delivered and/or each compliance certificate delivered. The IHS Holding RCF contains customary events of default (subject in certain cases to agreed grace periods, thresholds and other qualifications).
In July 2023, the available commitments were increased to $300.0 million pursuant to the facility increase clause contained within the IHS Holding RCF. In November 2023, the IHS Holding RCF was further amended and restated to, among other things, extend the termination date to October 30, 2026.
As of March 8, 2024, there are no amounts drawn and outstanding under the IHS Holding RCF.
The IHS Holding RCF is denominated in U.S. dollars and is governed by English law.
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IHS Holding (2022) Bullet Term Loan Facility
IHS Holding Limited entered into a $600.0 million term loan agreement in October 2022 (as amended and/or restated from time to time, the “IHS Holding 2022 Term Loan”), between, amongst others, IHS Holding Limited as borrower, Citibank Europe plc, UK Branch as facility agent and certain financial institutions listed therein as original lenders. The loan is guaranteed by IHS Netherlands Holdco B.V., IHS Netherlands NG1 B.V., IHS Towers NG Limited, IHS Netherlands NG2 B.V., Nigeria Tower Interco B.V., INT Towers Limited and IHS Nigeria.
The interest rate per annum applicable to loans made under the IHS Holding 2022 Term Loan is equal to Term SOFR, a credit adjustment spread plus a margin of 3.75% per annum. IHS Holding Limited also pays certain other fees and costs, including fees for undrawn commitments and fees to the facility agent.
The IHS Holding 2022 Term Loan is scheduled to terminate on the date falling 36 months from the date of the loan agreement and is repayable in full on that date. Subject to certain conditions, IHS Holding Limited may voluntarily prepay its utilizations and/or permanently cancel all or part of the available commitments by giving five Business Days’ notice, or such shorter period as the majority lenders may agree. In addition to voluntary prepayments, the IHS Holding 2022 Term Loan requires mandatory cancellation, and if applicable, prepayment in full or in part in certain circumstances, including, but not limited to: (i) with respect to any lender, if it becomes unlawful for such lender to perform any of its obligations under the IHS Holding 2022 Term Loan and (ii) upon the occurrence of a change of control as defined in the IHS Holding 2022 Term Loan.
The IHS Holding 2022 Term Loan contains customary information undertakings, affirmative covenants and negative covenants (including, without limitation, a negative pledge) in each case, subject to certain agreed exceptions and materiality carve-outs. These include an interest cover ratio (the ratio of EBITDA for the relevant period to interest expense for the relevant period) and a leverage ratio (the ratio of net financial debt for the relevant period to EBITDA in respect of that relevant period) as financial covenants. These financial covenants are tested quarterly in arrear based on the previous 12 months, ending on each relevant financial quarter date, by reference to the annual or quarterly (as applicable) financial statements delivered and/or each compliance certificate delivered. The IHS Holding 2022 Term Loan also contains customary events of default (subject in certain cases to agreed grace periods, thresholds and other qualifications).
Following the initial draw down under this facility in November 2022, in December 2022 IHS Holding Limited hedged a portion of its exposure to Term SOFR by entering into interest rate caps with a total of $100.0 million notional value and a cap rate of 4.50%, for the period between February 7, 2023 and November 7, 2024. The balance of $270.0 million remains unhedged.
In October 2023, the available commitments under the IHS Holding 2022 Term Loan were voluntarily reduced by $100.0 million and the availability period on the remaining balance of $130.0 million in available commitments was extended to April 2024 from October 2023. In March 2024, the available commitments under the IHS Holding 2022 Term Loan were further voluntarily reduced by $70.0 million.
As of March 8, 2024, $370.0 million of the IHS Holding 2022 Term Loan was drawn down. The majority of the drawn proceeds have been applied toward the prepayment of the IHS Holding Bridge Facility and the U.S. dollar tranche of the Nigeria 2019 Facility. The undrawn portion of $60.0 million can be applied toward general corporate purposes.
The IHS Holding 2022 Term Loan is denominated in U.S. dollars and is governed by English law.
IHS Holding (2024) Term Facility
IHS Holding Limited entered into a $270.0 million loan agreement on March 8, 2024 (as amended and/or restated from time to time, the “IHS Holding 2024 Term Facility”), between, amongst others, IHS Holding Limited as borrower and Standard Chartered Bank (Singapore) Limited as the original lender. The loan is guaranteed by IHS Netherlands Holdco B.V., IHS Netherlands NG1 B.V., IHS Towers NG Limited, IHS Netherlands NG2 B.V., Nigeria Tower Interco B.V., INT Towers Limited and IHS Nigeria.
The interest rate per annum applicable to loans made under the IHS Holding 2024 Term Facility is equal to Term SOFR, plus a margin (ranging from 4.50% to 7.00% per annum over the duration of the IHS Holding 2024 Term Facility), based on the relevant margin step-up date). IHS Holding Limited also pays certain other fees and costs, including fees for undrawn commitments.
111
The IHS Holding 2024 Term Facility is scheduled to terminate on the date falling 24 months from the date of the loan agreement and is repayable in installments. Subject to certain conditions, IHS Holding Limited may voluntarily prepay its utilizations and/or permanently cancel all or part of the available commitments by giving five Business Days’ notice, or such shorter period as the majority lenders may agree. In addition to voluntary prepayments, the IHS Holding 2024 Term Facility requires mandatory cancellation, and if applicable, prepayment in full or in part in certain circumstances, including, but not limited to, if it becomes unlawful for a lender to perform any of its obligations under the facility, upon the occurrence of a change of control and takeout financing (in each case as defined in the IHS Holding 2024 Term Facility).
The IHS Holding 2024 Term Facility contains customary information undertakings, affirmative covenants and negative covenants (including, without limitation, a negative pledge) in each case, subject to certain agreed exceptions and materiality carve-outs. These include an interest cover ratio (the ratio of EBITDA for the relevant period to interest expense for the relevant period) and a leverage ratio (the ratio of net financial debt for the relevant period to EBITDA in respect of that relevant period) as financial covenants. These financial covenants are tested quarterly in arrear based on the previous 12 months, ending on each relevant financial quarter date, by reference to the annual or quarterly (as applicable) financial statements delivered and/or each compliance certificate delivered. The IHS Holding 2024 Term Facility also contains customary events of default (subject in certain cases to agreed grace periods, thresholds and other qualifications).
As of March 8, 2024, there are no amounts drawn down and outstanding under the IHS Holding 2024 Term Facility.
The IHS Holding 2024 Term Facility is denominated in U.S. dollars and is governed by English law.
IHS Netherlands Holdco B.V. Notes
On each of September 18, 2019 and July 31, 2020, our wholly owned subsidiary, IHS Netherlands Holdco B.V. (“Holdco BV”), issued a total of $510.0 million 7.125% Senior Notes due 2025 (the “2025 Notes”), and $940.0 million 8.0% Senior Notes due 2027 (the “2027 Notes”) guaranteed by IHS Netherlands NG1 B.V., IHS Netherlands NG2 B.V., Nigeria Tower Interco B.V., IHS Nigeria, IHS Towers NG Limited and INT Towers, and (since June 22, 2021) IHS Holding Limited. On June 22, 2021, pursuant to a successful consent solicitation, Holdco B.V. also effected certain amendments to the indenture governing the notes to, among other things, expand the “restricted group” to encompass IHS Holding Limited and all of IHS Holding Limited’s subsidiaries (which would then be subject to the covenants and events of default under the indenture), and to make certain other consequential changes to the negative covenants and restrictions resulting from the larger group structure.
On November 30, 2021, the 2025 Notes were subsequently redeemed upon the successful issuance by IHS Holding of the IHS Holding Notes (as defined below).
The 2027 Notes mature on September 18, 2027, and pay interest semi-annually, with the principal repayable in full on maturity. On or after September 18, 2023 or 2024, the 2027 Notes may be redeemed (in whole or in part) at a price of 102.000% and 100.000%, respectively.
The indenture contains customary negative covenants and restrictions, including, but not limited to, our ability to: incur or guarantee additional indebtedness and issue certain preferred stock; make certain restricted payments and investments, including dividends or other distributions; create or incur certain liens; enter into agreements that restrict the ability of restricted subsidiaries to pay dividends; transfer or sell certain assets; merge or consolidate with other entities and enter into certain transactions with affiliates.
IHS Holding Limited Notes
On November 29, 2021, IHS Holding Limited issued $500.0 million 5.625% Senior Notes due 2026 (the “2026 Notes”) and $500.0 million 6.250% Senior Notes due 2028 (the “2028 Notes”, and together with the 2026 Notes, the “IHS Holding Notes”), guaranteed by IHS Netherlands Holdco B.V., IHS Netherlands NG1 B.V., IHS Netherlands NG2 B.V., Nigeria Tower Interco B.V., IHS Nigeria Limited, IHS Towers NG Limited and INT Towers Limited.
At any time prior to November 29, 2024 for the 2028 Notes, IHS Holding Limited may redeem up to 40% of the notes with the net cash proceeds from certain equity offerings at a redemption price equal to 106.250% of the principal amount of the 2028 Notes, plus accrued and unpaid interest and additional amounts, if any, to the redemption date, so long as at least 50% of the aggregate original principal amount of the applicable series of notes remains outstanding immediately thereafter. In addition, the notes may, during such periods, be redeemed at a redemption price equal to 100% of the principal amount plus a “make-whole” premium. On or after November 29, 2023, 2024 or 2025, the 2026 Notes may be redeemed (in whole or in part) at a price of 102.81250%, 101.40625% and 100.00000%, respectively.
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On or after November 29, 2024, 2025 or 2026, the 2028 Notes may be redeemed (in whole or in part) at a price of 103.1250%, 101.5625% and 100.0000%, respectively.
The indenture governing the notes contains customary negative covenants and restrictions, including, but not limited to, our ability to: incur or guarantee additional indebtedness and issue certain preferred stock; make certain restricted payments and investments, including dividends or other distributions; create or incur certain liens; enter into agreements that restrict the ability of restricted subsidiaries to pay dividends; transfer or sell certain assets; merge or consolidate with other entities and enter into certain transactions with affiliates.
The proceeds of the issuance of the IHS Holding Notes were used to redeem the entire principal amount of the 2025 Notes (including accrued and unpaid interest and the redemption premium), fees and expenses related to the offering of the notes, and for general corporate purposes. The IHS Holding Notes pay interest semi-annually and the principal is repayable in full on maturity.
Nigeria (2023) Term Loan
IHS Netherlands Holdco B.V., IHS Nigeria, IHS Towers NG Limited, INT Towers and IHS Holding Limited entered into an up to NGN 165.0 billion (approximately $181.0 million) term loan agreement in January 2023 (as amended and/or restated from time to time the “Nigeria 2023 Term Loan”), and between, amongst others, IHS Netherlands Holdco B.V. as holdco and guarantor; IHS Towers NG Limited and INT Towers as borrowers; each of IHS Holding Limited, IHS Netherlands NG1 B.V., IHS Nigeria, IHS Netherlands NG2 B.V., and Nigeria Tower Interco B.V. as guarantors; Ecobank Nigeria Limited as agent and certain financial institutions listed therein as original lenders.
The interest rate per annum is equal to 20% in the first year moving to a floating rate for the remainder of the term. This floating rate is defined by the Nigerian MPR plus a margin of 2.5% and is subject to a cap of 24% and floor of 18%. IHS Netherlands Holdco B.V. also pays certain other fees and costs, including agent fees.
The Nigeria 2023 Term Loan contains customary information undertakings, affirmative covenants and negative covenants (including, without limitation, a negative pledge) in each case, subject to certain agreed exceptions and materiality carve-outs. These include an interest cover ratio (the ratio of EBITDA for the relevant period to interest expense for the relevant period) and a leverage ratio (the ratio of net financial debt for the relevant period to EBITDA in respect of that relevant period) as financial covenants. These financial covenants are tested quarterly in arrear based on the previous 12 months, ending on each relevant financial quarter date, by reference to the annual or quarterly (as applicable) financial statements delivered and/or each compliance certificate delivered. The Nigeria 2023 Term Loan also contains customary events of default (subject in certain cases to agreed grace periods, thresholds and other qualifications).
The Nigeria 2023 Term Loan was drawn down for an original principal amount of NGN 124.5 billion (which was approximately $136.6 million), and funds borrowed under the loan were applied towards, inter alia, refinancing certain indebtedness of INT Towers, IHS Nigeria, and general corporate and working capital purposes.
The Nigeria 2023 Term Loan is scheduled to terminate on the date falling 60 months from the date of the Nigeria 2023 Term Loan and is repayable in installments. Subject to certain conditions, IHS Netherlands Holdco B.V. and the borrowers may voluntarily prepay utilizations and/or permanently cancel all or part of the available commitments by giving five business days’ prior notice (or such shorter period as the majority lenders may agree). In addition to voluntary prepayments, the Nigeria 2023 Term Loan requires mandatory cancellation, and if applicable, prepayment in full or in part in certain circumstances.
As of January 3, 2023, the total commitments available under the Nigeria 2023 Term Loan were NGN 124.5 billion (approximately $136.6 million), which were increased in February 2023, by NGN 29.0 billion (approximately $31.8 million) and further increased in May 2023, by NGN 11.5 billion (approximately $12.6 million) pursuant to the facility increase clause contained within the loan agreement up to its total NGN 165.0 billion (approximately $181.0 million) capacity.
In January 2023, NGN 124.5 billion (approximately $136.6 million) was drawn down under the Nigeria 2023 Term Loan. Further drawdowns took place in March 2023, April 2023 and June 2023 for NGN 14.0 billion (approximately $15.4 million), NGN 15.0 billion (approximately $16.5 million) and NGN 11.5 billion (approximately $12.6 million), respectively.
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As of March 8, 2024, NGN 165.0 billion (approximately $181.0 million) has been drawn down under this facility. The proceeds from the drawdown were applied towards, inter alia, refinancing certain indebtedness of INT Towers and IHS Nigeria, and for general corporate and working capital purposes.
The Nigeria 2023 Term Loan is denominated in Naira and is governed by English law.
Nigeria (2023) Revolving Credit Facility
IHS Netherlands Holdco B.V., IHS Nigeria, IHS Towers NG Limited, INT Towers and IHS Holding Limited entered into an up to NGN 55.0 billion (approximately $60.3 million) revolving credit facility agreement in January 2023 (as amended and/or restated from time to time the “Nigeria 2023 RCF”), and between, amongst others, IHS Netherlands Holdco B.V. as holdco and guarantor; IHS Towers NG Limited and INT Towers as borrowers and guarantors; each of IHS Holding Limited, IHS Netherlands NG1 B.V., IHS Netherlands NG2 B.V., and Nigeria Tower Interco B.V. as guarantors; Ecobank Nigeria Limited as agent and certain financial institutions listed therein as original lenders.
The interest rate per annum is equal to 20% in the first year moving to a floating rate for the remainder of the term. This floating rate is defined by the Nigerian MPR plus a margin of 2.5% and is subject to a cap of 24% and floor of 18%. IHS Netherlands Holdco B.V. also pays certain other fees and costs, including agent fees.
The Nigeria 2023 RCF contains customary information undertakings, affirmative covenants and negative covenants (including, without limitation, a negative pledge) in each case, subject to certain agreed exceptions and materiality carve-outs. These include an interest cover ratio (the ratio of EBITDA for the relevant period to interest expense for the relevant period) and a leverage ratio (the ratio of net financial debt for the relevant period to EBITDA in respect of that relevant period) as financial covenants. These financial covenants are tested quarterly in arrear based on the previous 12 months, ending on each relevant financial quarter date, by reference to the annual or quarterly (as applicable) financial statements delivered and/or each compliance certificate delivered. The Nigeria 2023 RCF also contains customary events of default (subject in certain cases to agreed grace periods, thresholds and other qualifications).
The Nigeria 2023 RCF is scheduled to terminate on the date falling 36 months from the date of the Nigeria 2023 RCF, and is repayable in full on maturity. Subject to certain conditions, IHS Netherlands Holdco B.V. and the borrowers may voluntarily prepay utilizations and/or permanently cancel all or part of the available commitments by giving five business days’ prior notice (or such shorter period as the majority lenders may agree). In addition to voluntary prepayments, the Nigeria 2023 RCF requires mandatory cancellation, and if applicable, prepayment in full or in part in certain circumstances.
As of January 3, 2023, the total commitments available under the Nigeria 2023 RCF were NGN 44.0 billion (approximately $48.3 million), which were further increased in February 2023, by NGN 11.0 billion (approximately $12.1 million) to NGN 55.0 billion (approximately $60.3 million), pursuant to the facility increase clause contained within the loan agreement.
As of March 8, 2024, NGN 15.0 billion (approximately $16.5 million) has been drawn down under this facility.
The Nigeria 2023 RCF is denominated in Naira and is governed by English law.
Nigeria (2019) term loan
IHS Netherlands Holdco B.V., IHS Nigeria, IHS Towers NG Limited, INT Towers and IHS Holding Limited entered into a term loan agreement, originally in September 2019 (and as amended and/or restated from time to time, including pursuant to an amendment and restatement agreement entered into in September 2021) (the “Nigeria 2019 Facility”), and between, amongst others, IHS Netherlands Holdco B.V. as holdco and guarantor; IHS Nigeria, IHS Towers NG Limited and INT Towers as borrowers and guarantors; each of IHS Holding Limited, IHS Netherlands NG1 B.V., IHS Nigeria, IHS Netherlands NG2 B.V., IHS Towers NG Limited, Nigeria Tower Interco B.V. and INT Towers as guarantors; Ecobank Nigeria Limited as agent and certain financial institutions listed therein as original lenders.
The interest rate per annum applicable to loans made under the Nigeria 2019 Facility was equal to: (a) in relation to the U.S. dollar tranche, prior to a rate switch date, 3 Month LIBOR (subject to a zero floor) plus a margin of 4.25% per annum (subject to a margin ratchet where the level of margin may be increased (up to a maximum of 4.50)% or decreased subject to certain tests, including the relevant leverage ratio of the IHS Holding Limited Group) and, after a rate switch date for U.S. dollars, was equal to a compounded reference rate based on SOFR (calculated on a five day RFR banking day lookback) and a credit adjustment spread plus the margin; and (b) in relation to the Naira tranche, 3 Month NIBOR (subject to a zero floor) plus a margin of 2.50% per annum.
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IHS Netherlands Holdco B.V. also paid certain other fees and costs, including agent fees.
The Nigeria 2019 Facility contained customary information undertakings, affirmative covenants and negative covenants (including, without limitation, a negative pledge) in each case, subject to certain agreed exceptions and materiality carve-outs. These included an interest cover ratio (the ratio of EBITDA for the relevant period to interest expense for the relevant period) and a leverage ratio (the ratio of net financial debt for the relevant period to EBITDA in respect of that relevant period) as financial covenants. These financial covenants were tested quarterly in arrear based on the previous 12 months, ending on each relevant financial quarter date, by reference to the annual or quarterly (as applicable) financial statements delivered and/or each compliance certificate delivered. The Nigeria 2019 Facility also contained customary events of default (subject in certain cases to agreed grace periods, thresholds and other qualifications).
The U.S. dollar tranche was drawn down for an original principal amount of $110.0 million, and the Naira tranche was drawn down for an original principal amount of NGN 141.3 billion (which was approximately $390.0 million as of the date of the Nigeria 2019 Facility), and funds borrowed under the loan were applied towards, inter alia, refinancing certain indebtedness of INT Towers, general corporate and working capital purposes, and funding a partial settlement of intercompany loans.
Each facility under the loan was scheduled to terminate on the date falling 60 months and one day after the date of the first utilization of that facility, and were repayable in installments. Subject to certain conditions, IHS Netherlands Holdco B.V. and the borrowers could voluntarily prepay utilizations and/or permanently cancel all or part of the available commitments by giving five business days’ prior notice (or such shorter period as the majority lenders might agree). In addition to voluntary prepayments, the Nigeria 2019 Facility required mandatory cancellation, and if applicable, prepayment in full or in part in certain circumstances.
In November 2022, we prepaid the full remaining principal amount of the U.S. dollar tranche of the loan of $75.6 million (plus accrued interest and break costs) using the proceeds received following the initial drawdown under the IHS Holding 2022 Term Loan.
As of December 31, 2022, the Naira facility had NGN 88.3 billion (approximately $96.9 million) outstanding.
In January 2023, we prepaid the full remaining principal amount of the Naira tranche of the loan of NGN 88.3 billion (approximately $96.9 million) (plus accrued interest) using the proceeds received following the initial drawdown under the Nigeria 2023 Term Loan.
The Nigeria 2019 Facility was governed by English law.
IHS (Nigeria) Local Facilities
IHS (Nigeria) Limited entered into two local currency facilities, each governed by Nigerian law, as follows:
(a)A NGN 16.1 billion (approximately $17.7 million) facility in March 2022 and guaranteed by each of IHS Holding Limited, INT Towers Limited and IHS Towers NG Limited. The applicable interest rate was 12.5% per annum and funds borrowed under the facility were applied towards general corporate purposes (the “IHSN NG1 Facility”). The IHSN NG1 Facility was due to terminate in March 2023 and was fully drawn down in April 2022; and
(b)A NGN 10.0 billion (approximately $11.0 million) facility in May 2022 and guaranteed by each of IHS Holding Limited, INT Towers Limited and IHS Towers NG Limited (the “IHSN NG2 Facility” and, together with the IHSN NG1 Facility, the “IHS Nigeria Local Facilities”). The applicable interest rate was 15.0% per annum until October 2022 after which it increased to 18.0% per annum, and funds borrowed under the facility were applied towards working capital requirements. The IHSN NG2 Facility was due to terminate in July 2023 and was fully drawn down in July 2022.
In January 2023, we prepaid the full remaining principal amount of the IHS Nigeria Local Facilities of NGN 26.1 billion (approximately $28.6 million) (plus accrued interest) using the proceeds received following the initial drawdown under the Nigeria 2023 Term Loan.
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IHS Côte d’Ivoire S.A. Facility
IHS Côte d’Ivoire S.A. entered into a credit agreement originally in June 2015 (as amended and/or restated from time to time, including in August 2017 and June 2022) with certain financial institutions, split into one tranche with a total commitment of €52.0 million (approximately $57.4 million) (the “CIV Euro Tranche”), and another tranche with a total commitment of XOF 44.6 billion (approximately $75.1 million) (the “CIV XOF Tranche” and, together with the CIV Euro Tranche, the “IHS Côte d’Ivoire S.A. Facility”). The IHS Côte d’Ivoire S.A. Facility is guaranteed by IHS Holding Limited. The CIV Euro Tranche has an interest rate of 3.00% plus 3 Month EURIBOR, (subject to a zero floor), and the CIV XOF Tranche has an interest rate of 5.00%. The IHS Côte d’Ivoire S.A. Facility contains customary information and negative covenants and requires IHS Côte d’Ivoire S.A. to observe certain customary affirmative covenants, subject to certain agreed exceptions and materiality carve-outs. The covenants include that IHS Côte d’Ivoire S.A. maintain specified net debt to EBITDA ratios and interest coverage ratios, each as defined therein.
The IHS Côte d’Ivoire S.A. Facility was fully drawn down in 2017, and the termination date has been extended to June 2024.
The IHS Côte d’Ivoire S.A. Facility was fully repaid in February 2024 using the proceeds received from the initial drawdown of the CIV 2023 Term Loan.
CIV (2023) Term Loan
IHS Côte d’Ivoire S.A. entered into a facility agreement originally in December 2023 (as amended and/or restated from time to time) with, amongst others, certain financial institutions listed therein as original lenders, split into one tranche with a total commitment of €88.0 million (approximately $97.1 million) (the “CIV 2023 Euro Tranche”), and another tranche with a total commitment of XOF 11.2 billion (approximately $18.8 million) (the “CIV 2023 XOF Tranche” and, together with the CIV 2023 Euro Tranche, the “CIV 2023 Term Loan”). The CIV 2023 Term Loan is governed by French law. Funds under the facility are to be applied towards, inter alia, refinancing certain indebtedness of IHS Côte d’Ivoire S.A. (including the IHS Côte d’Ivoire S.A. Facility), general corporate and working capital purposes, and funding a settlement of intercompany loans.
The CIV 2023 Term Loan has an interest rate of 3.50% plus 3 Month EURIBOR on the CIV 2023 Euro Tranche and 6.50% on the CIV 2023 XOF Tranche, and contains customary information and negative covenants, as well as requirements for IHS Côte d’Ivoire S.A. to observe certain customary affirmative covenants (subject to certain agreed exceptions and materiality carve-outs) and maintain specified net debt to EBITDA ratios and interest coverage ratios.
The CIV 2023 Term Loan will terminate in December 2028. As of December 31, 2023, there were no amounts drawn down under this facility.
In February 2024, €56.1 million (approximately $61.9 million) and XOF 7,109.0 million (approximately $12.0 million) was drawn down under the CIV 2023 Term Loan and the proceeds were applied towards, inter alia, the repayment of the IHS Côte d’Ivoire S.A. Facility.
As of March 8, 2024, an aggregate amount of €56.1 million and XOF 7.1 billion (approximately $73.9 million) has been drawn down under this facility.
IHS Zambia Limited Facility
IHS Zambia Limited entered into two facilities with a common terms agreement originally in December 2020 (as amended and/or restated from time to time, including in February 2021 and January 2023) with a total commitment of $95.0 million with certain financial institutions (the “Zambia Facility”), split into a facility for an aggregate commitment representing $75.0 million and a second facility for an aggregate commitment representing $20.0 million.
The Zambia Facility is guaranteed by IHS Holding Limited, and was fully utilized as of March 2021. The Zambia Facility has an interest rate of 5.0% plus 3 Month Term SOFR and a credit adjustment spread ranging between 0.11% to 0.43% and contains customary information and negative covenants and requires IHS Zambia Limited to observe certain customary affirmative covenants, subject to certain agreed exceptions and materiality carve-outs. The covenants include that IHS Zambia Limited maintain specified net debt to EBITDA ratios and interest coverage ratios, each as defined in the agreement. The respective facilities will terminate in December 2027.
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IHS Kuwait Facility
IHS Kuwait Limited entered into a loan agreement originally in April 2020 (as amended and/or restated from time to time) with a total commitment of KWD 26.0 million (approximately $84.6 million) (the “Kuwait Facility”). The Kuwait Facility has an interest rate of 2.00% plus 3 Month KIBOR, contains customary information and negative covenants, and requires IHS Kuwait Limited to observe certain customary affirmative covenants, subject to certain agreed exceptions and materiality carve outs. The covenants include that IHS Kuwait Limited maintain specified net debt to EBITDA ratios, a debt service cover ratio and restrict capital expenditures to levels established within the facility.
The Kuwait Facility will terminate in April 2029, and as of December 31, 2023, KWD 21.8 million (approximately $70.9 million) of this facility was drawn down.
As of March 8, 2024, an aggregate amount of KWD 21.8 million (approximately $70.9 million) has been drawn down under this facility.
IHS Brasil - Cessão de Infraestruturas S.A. Debentures
IHS Brasil - Cessão de Infraestruturas S.A. issued debentures for BRL 1,200.0 million (approximately $247.3 million), in September 2023 (as amended and/or restated from time to time, the “IHS Brasil Debentures”). The IHS Brasil Debentures amortize, starting from February 2026, semi-annually until maturity in August 2031.
The IHS Brasil Debentures contain customary information and financial covenants, including but not limited to the maintenance of specified net debt to EBITDA and interest cover ratios. They also contain customary negative covenants and restrictions including, but not limited to, dividends and other payments to shareholders, intercompany loans and capital reductions.
The IHS Brasil Debentures are secured by a pledge over all shares owned by IHS Netherlands BR B.V. in IHS Brasil – Cessão de Infraestruturas S.A. and a pledge over the bank account where the companies’ receivables are deposited.The IHS Brasil Debentures have an interest rate of CDI plus 3.10% (assuming a 252-day calculation basis) and will terminate in August 2031.
The proceeds from the issuance of the IHS Brasil Debentures were applied towards, inter alia, refinancing certain indebtedness of IHS Brasil - Cessão de Infraestruturas S.A. (including the IHS Brasil Facilities and the GTS Facility, as defined below) and general corporate and working capital purposes.
IHS Brasil - Cessão de Infraestruturas S.A. Facilities
IHS Brasil Participacoes Ltda entered into (and later assigned to IHS Brasil - Cessão de Infraestruturas S.A.) the following facilities: (a) a BRL 300.0 million (approximately $61.8 million) credit agreement originally in May 2021 (as amended and/or restated from time to time, the “IHS Brasil Facility 1”), and (b) a BRL 100.0 million (approximately $20.6 million) credit agreement originally in June 2021 (as amended and/or restated from time to time) (the “IHS Brasil Facility 2” and, together with the IHS Brasil Facility 1, the “IHS Brasil Facilities”).
IHS Brasil - Cessão de Infraestruturas S.A. also entered into a BRL 495.0 million (approximately $102.0 million) credit agreement originally in April 2022 (as amended and/or restated from time to time, the “GTS Facility”).
The IHS Brasil Facilities and the GTS Facility each contain customary information and negative covenants, including the maintenance of specified net debt to EBITDA and interest cover ratios. They also contain restrictions on the total debt allowed, dividends, intercompany loans and capital reductions.
The IHS Brasil Facility 1 has an interest rate of 3.65% (assuming a 252-day calculation basis) plus CDI, and will terminate in May 2029. This facility was fully drawn down in May 2021.
The IHS Brasil Facility 2 has an interest rate of 3.65% (assuming a 252-day calculation basis) plus CDI, and will terminate in May 2029. This facility was fully drawn down in June 2021.
The GTS Facility has an interest rate of CDI plus a margin of 3.05% (assuming a 252-day calculation basis), and will terminate in April 2028. The GTS Facility was fully drawn down in April 2022.
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In September 2023, we prepaid the full remaining principal amount of the IHS Brasil Facilities and the GTS Facility of BRL 713.6 million (approximately $147.1 million) (plus accrued interest) using the proceeds received following the issuance of the IHS Brasil Debentures.
I-Systems Facility
I-Systems Soluções de Infraestrutura S.A. (“I-Systems”) entered into a BRL 200.0 million (approximately $41.2 million) credit agreement, originally in October 2022 (as amended and/or restated from time to time, the “I-Systems Facility”). The I-Systems Facility is secured by the chattel mortgage of certain credit rights of I-Systems and contains customary information and negative covenants, including the maintenance of specified net debt to EBITDA ratio. It also contains restrictions on the total debt allowed, dividends, intercompany loans and capital reductions. The I-Systems Facility has an interest rate of CDI plus 2.45% (assuming a 252-day calculation basis), and will terminate in October 2030. The facility was fully drawn down in October 2022.
In October 2022, Itau Unibanco S.A. provided an additional commitment in an aggregate amount of BRL 200.0 million (approximately $41.2 million) on the same terms, available in two tranches. The first tranche of BRL 80.0 million (approximately $16.5 million was drawn down in February 2023 with an interest rate of CDI plus 2.45% (assuming a 252-day calculation basis), and the second tranche of BRL 120.0 million (approximately $24.7 million) was drawn down in March 2023 with an interest rate of CDI plus 2.50% (assuming a 252-day calculation basis).
IHS South Africa Facility
IHS Towers South Africa Proprietary Limited (“IHS SA”) entered into a ZAR 3,470.0 million (approximately $189.0 million) facility agreement originally in May 2022 (as amended and/or restated from time to time (the “IHS SA Facility”), with, amongst others, certain financial institutions listed therein as original lenders. The IHS SA Facility is governed by South African law and funds borrowed under the facility were partly applied toward the payment of consideration owed pursuant to the MTN SA Acquisition. The undrawn portion can be applied toward capital expenditure and general corporate purposes and is available for up to 24 months from the signature date of the agreement.
The IHS SA Facility has an interest rate of 2.75% plus 3 Month JIBAR, and contains customary information and negative covenants, as well as requirements for IHS SA to observe certain customary affirmative covenants (subject to certain agreed exceptions and materiality carve-outs) and maintain specified net debt to EBITDA ratios and interest coverage ratios.
The IHS SA Facility will terminate in May 2029.
In May 2022, ZAR 3,400.0 million (approximately $185.2 million), was drawn down under the IHS SA Facility. Further drawdown took place in May 2023 for ZAR 70.0 million (approximately $3.8 million).
As of March 8, 2024, ZAR 3,470.0 million (approximately $189.0 million) has been drawn down under this facility.
IHS South Africa Overdraft
IHS SA entered into a ZAR 350.0 million (approximately $19.1 million) overdraft facility agreement in October 2023 (the “IHS SA Overdraft”). The IHS SA Overdraft is governed by South African law and funds borrowed under the facility will be applied towards general corporate purposes. The IHS SA Overdraft will terminate in October 2024.
As of March 8, 2024, ZAR 278.9 million (approximately $15.2 million) has been drawn down under this facility.
Letter of Credit Facilities
As of December 31, 2023, IHS (Nigeria) Limited has utilized $98.9 million through funding under agreed letters of credit. These letters mature on March 31, 2024, and their interest rates range from 12.00% to 15.55%. These letters of credit are utilized to fund capital and operational expenditure with suppliers.
As of December 31, 2023, INT Towers Limited has utilized $219.4 million through funding under agreed letters of credit. These letters mature on March 31, 2024, and their interest rates range from 12.00% to 15.75%. These letters of credit are utilized to fund capital and operational expenditure with suppliers.
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As of December 31, 2023, ITNG Limited has utilized $0.02 million through funding under agreed letters of credit. These letters mature on March 31, 2024, and incur interest at a rate of 15.49%. These letters of credit are utilized in order to fund capital and operational expenditure with suppliers.
As of December 31, 2023, Global Independent Connect Limited has utilized $1.1 million through funding under agreed letters of credit. These letters mature on March 31, 2024, and their interest rates range from 13.25% to 15.49%. These letters of credit are utilized to fund capital and operational expenditure with suppliers.
C. Research and Development, Patents and Licenses, etc.
The Company does not have any research and development policies or patents. See note 2.13(b) to our audited consolidated financial statements included in this Annual Report for a discussion of our licenses.
D. Trend Information
Other than as disclosed elsewhere in this Annual Report, we are not aware of any trends, uncertainties, demands, commitments or events since December 31, 2023 that are reasonably likely to have a material adverse effect on our revenue, income, profitability, liquidity or capital resources, or that would cause the disclosed financial information to be not necessarily indicative of future operating results or financial conditions.
E. Critical Accounting Estimates
Our consolidated financial statements are prepared in conformity with IFRS, as issued by the IASB. In preparing our consolidated financial statements, we make judgements, estimates and assumptions about the application of our accounting policies which affect the reported amounts of assets, liabilities, revenue and expenses. Our critical accounting estimates and judgements and sources of estimation uncertainty are described in note 3 to our audited consolidated financial statements, which are included elsewhere in this Annual Report.
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Item 6. Directors, Senior Management and Employees
A. Directors and Senior Management
Executive Officers and Directors
The following table presents information about our current executive officers and directors, including their ages as of the date of this Annual Report:
Name |
|
Age |
|
Position |
Executive Officers |
|
|
|
|
Sam Darwish |
|
52 |
|
Chairman, Group Chief Executive Officer and Director |
Mohamad Darwish |
|
44 |
|
Executive Vice President, IHS Nigeria Chief Executive Officer |
William Saad |
|
52 |
|
Executive Vice President, Group Chief Operating Officer |
Steve Howden |
|
41 |
|
Executive Vice President, Chief Financial Officer |
Ayotade Oyinlola |
|
49 |
|
Executive Vice President, Chief Human Resources Officer |
Colby Synesael |
|
45 |
|
Executive Vice President, Communications |
Mustafa Tharoo |
|
50 |
|
Executive Vice President, Group General Counsel |
Directors |
|
|
|
|
Ursula Burns |
|
65 |
|
Director |
John Ellis Bush |
|
71 |
|
Director |
Frank Dangeard |
|
66 |
|
Director |
Bashir El-Rufai |
|
70 |
|
Director |
Maria Carolina Lacerda |
|
51 |
|
Director |
Nicholas Land |
|
76 |
|
Director |
Phuthuma Nhleko |
|
63 |
|
Director |
Aniko Szigetvari |
|
54 |
|
Director |
|
|
|
|
|
Unless otherwise indicated, the current business addresses for our executive officers and directors is c/o IHS Holding Limited, 1 Cathedral Piazza, 123 Victoria Street, London SW1E 5BP, United Kingdom.
Bryce Fort, a former Non-Executive Director, resigned from the Board of Directors of the Company effective August 9, 2023.
William (Bill) Bates, our former Group Chief Strategy Officer, resigned from the Company effective September 30, 2023.
Executive Officers
The following is a brief summary of the business experience of our executive officers.
Sam Darwish is one of our co-founders, our Chairman and Group Chief Executive Officer. An engineer by education, Mr. Darwish has over 25 years’ experience in the telecommunications industry. Before founding the Company in 2001, he served as the Deputy Managing Director of CELIA Motophone Ltd, a Nigerian GSM operator, from 1999 to 2000. Prior to that, Mr. Darwish was Vice Chairman and Director of projects at Lintel, an international GSM developer, from 1998 to 1999. Mr. Darwish also served as Network Manager for Libancell SAL, a Lebanese GSM operator, which is currently known as Touch, from 1994 to 1998. In addition, Mr. Darwish currently serves as the Founder and Principal of Singularity Investments, a private investment firm with a focus on technology, media and telecommunications companies in the United States and the emerging markets. He is also the Founder and President of DAR Properties, a property investment company, and DAR Telecom, a telecommunications consulting company. Sam Darwish is the brother of Mohamad Darwish, our Executive Vice President and IHS Nigeria Chief Executive Officer.
Mohamad Darwish is one of our co-founders and has served as Executive Vice President of IHS Towers and Chief Executive Officer of IHS Nigeria since January 2023. Mr. Darwish previously served as Senior Vice President of IHS Towers and Chief Executive Officer of IHS Nigeria from November 2015 until December 2022. Prior to this, Mr. Darwish served as the IHS Nigeria Deputy CEO from October 2014 to November 2015.
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Mr. Darwish has around 20 years of experience in the telecommunications sector. In addition, Mr. Darwish currently serves as the Founder and Principal of Singularity Investments, a private investment firm with a focus on technology, media and telecommunications companies in the United States and the emerging markets. Mohamad Darwish is the brother of Sam Darwish, our Chairman and Group Chief Executive Officer.
William Saad is one of our co-founders and has served as Executive Vice President and Group Chief Operating Officer of IHS Towers since July 2012 and has 28 years’ experience in the telecommunications industry. Before co-founding the Company, Mr. Saad was the Operations Director at CELIA Motophone, a Nigerian GSM operator, from 1998 to 2001. Before joining CELIA, Mr. Saad served as project manager at Lintel SAL, an international GSM operator, from 1998 to 1999 and prior to that as OMC Network Administrator with Libancell SAL, the first Lebanese GSM operator, from 1995 to 1998. Mr. Saad also serves on the board of several private companies as well as the Lebanese-Nigerian Initiative, a non-profit organization.
Stephen (Steve) Howden has served as Executive Vice President and Chief Financial Officer of IHS Towers since April 2022. Mr. Howden previously served as Senior Vice President and Deputy Chief Financial Officer from June 2019 until March 2022. Since joining the Company in January 2013, Mr. Howden has also served as Group Head of M&A as well as a variety of other senior finance positions. Prior to joining IHS Towers, Mr. Howden was a member of the Ernst & Young M&A department from 2006 to 2013 and in the Corporate Restructuring team at Ernst & Young and Andersen prior to that. Mr. Howden has approximately 18 years of finance and corporate finance experience. Mr. Howden is a qualified Chartered Accountant.
Ayotade Oyinlola has served as Executive Vice President and the Chief Human Resources Officer of IHS Towers since January 2023. Mr. Oyinlola previously served as Senior Vice President and Chief Human Resources Officer of IHS Towers from July 2015 until December 2022. Mr. Oyinlola brings over 20 years of human resources and telecommunications experience to the Company. Prior to joining IHS Towers, Mr. Oyinlola served as Millicom Services UK Head of HR for Africa and Europe from 2013 to 2015. He also served as Ericsson’s West Africa HR Director from 2011 to 2013 and Ericsson’s Sub-Sahara Africa Director for Learning and Development from 2009 to 2011. In addition, Mr. Oyinlola has previously held several senior positions at Shell Petroleum, Bristow Helicopters Atlasco Technologies and Resourcery Limited. Mr. Oyinlola is a Chartered Fellow of the Chartered Institute of Personnel and Development in the United Kingdom, and a member of the Chartered Institute of Personnel Managers in Nigeria.
Colby Synesael has served as Executive Vice President of Communications of IHS Towers since January 2023. Mr. Synesael served as Senior Vice President of Communications of IHS Towers from when he joined the Company in March 2022 until December 2022. Mr. Synesael is responsible for IHS Towers’ corporate communications including investor relations and ESG reporting. Since Bill Bates’ resignation, Mr. Synesael has overseen the Company’s commercial and M&A functions in an interim capacity. Prior to joining IHS Towers, Mr. Synesael spent twelve years as a managing director and senior research analyst specializing in the communications infrastructure (towers, data centers, fiber) and telecom services industries at Cowen, an investment bank. Prior to joining Cowen in March 2010, he was a senior research analyst at Kaufman Brothers and before that spent nearly three years at Merriman Curhan Ford. Between 2001 to January 2006 Mr. Synesael worked at Thomas Weisel Partners, focusing as a research associate from 2003 onwards covering communications infrastructure and telecom services.
Mustafa Tharoo has served as Executive Vice President and Group General Counsel of IHS Towers since 2012. Before joining the Company, Mr. Tharoo was a Consultant at ADEPT Chambers in Tanzania from 2009 to 2011. Previously, Mr. Tharoo served as a consultant at Ringo & Associates in Tanzania from 2003 to 2009 and a Partner at Anjarwalla & Khanna in Kenya from 2000 to 2003. Mr. Tharoo has over 20 years of experience in corporate, compliance and regulatory matters as well as major transactions across Africa and the Middle East.
Directors
The following is a brief summary of the business experience of our directors.
Ursula Burns joined the Board of Directors of IHS Holding Limited as a Non-Executive Independent Director in July 2020. Ms. Burns most recently held the position of Chair and CEO of VEON, Ltd, where she was appointed Chair from June 2017 and then made Chair and CEO from December 2018 to June 2020. Ms. Burns is also a founding partner of Integrum Holdings, a private equity firm. She currently serves as a member of the boards of directors of Endeavor Group Holdings Inc., Uber Technologies Inc., and Teneo Holdings LLC, amongst others, and provides leadership counsel to several community, educational and non-profit organizations. Ms. Burns served as Chair of the President’s Export Council from 2015 to 2016 after holding the position of Vice Chair from 2010 to 2015.
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In February 2022, Ms. Burns joined the Biden Administration’s U.S. Department of Commerce’s Advisory Council on Supply Chain Competitiveness. Ms. Burns also has 35 years of experience with Xerox, joining the organization as a mechanical engineer before moving into management, where she served in a number of strategic roles across the company, including as CEO from 2009 to 2016 and as Chair from 2010 to 2017.
John Ellis (Jeb) Bush joined the Board of Directors of IHS Holding Limited as a Non-Executive Independent Director in August 2019. Mr. Bush has served as the President of Jeb Bush & Associates LLC since 2007, as the Chairman of Dock Square Capital since 2016, and as Chairman and Co-founder of Finback Investment Partners LLC since 2019. Mr. Bush has served on the boards of directors of InnovAge Holding Corp. and Jackson Acquisition Company since 2021. Mr. Bush has also served as Chairman of the Foundation for Excellence in Education since 2007. Mr. Bush was previously a senior adviser for Barclays and a board member of Tenet Healthcare Corp. Mr. Bush served as Governor of Florida from 1999 to 2007 and as the Florida Secretary of Commerce from 1986 to 1988.
Frank Dangeard joined the Board of Directors of IHS Holding Limited in September 2020 and since July 2023 has served as a Non-Executive Independent Director. Mr. Dangeard was Chairman & CEO of Thomson from September 2004 to February 2008. Prior to that he was Deputy CEO of France Telecom from September 2002 to September 2004, Deputy CEO and Deputy Chairman of Thomson Multimedia from June 1997 to September 2002, and Managing Director of the investment bank SG Warburg & Co. Ltd from October 1988 to June 1997. Mr. Dangeard currently serves as Chairman of the boards of Gen Digital (previously NortonLifelock) and NatWest Markets, the investment banking arm of NatWest Group, and as a non-executive director of the NatWest Group and the Competition and Markets Authority. Mr. Dangeard has previously served on the boards of RPX, Orange, Equant, Wanadoo, Eutelsat, SonaeCom, Arqiva and on the board of Telenor as Deputy Chairman and Acting Chairman. He has been a member of the Advisory Boards of the Harvard Business School and of Ecole des Hautes Etudes Commerciales, and was a founding board member of Bruegel, the European think-tank.
Mallam Bashir Ahmad El-Rufai joined the Board of Directors of IHS Holding Limited in June 2013. Mr. El-Rufai also serves on the boards of a number of our subsidiaries. Prior to joining IHS Nigeria, Mr. El-Rufai served as Training and Development Officer and later Assistant Production Manager at Kano State Oil & Allied Product Limited from 1977 to 1979, before joining Nigerian Cereals Processing Company Ltd as Group Marketing Manager from 1981 to 1983. He served as Chief Commercial Officer for the Northern District of Nigerian External Telecommunications Limited from 1983 to 1985 and held several positions at Nigerian Telecommunications Ltd from 1985 to 1996. Mr. El-Rufai was also co-founder and President of Intercellular Nigeria Limited from 1997 to 2009. Mr. El-Rufai currently serves as Chairman of Intercellular Nigeria and has served as Vice Chairman and Corporate Advisor of Intercellular (Nigeria) Limited in 2009. He also served as an Independent Director of FSDH Merchant Bank Limited. Mr. El-Rufai has also chaired several boards, including Channel Distribution (an ICT company), Systemtech (an IT company), Alpha Aluminium and Northstar Chemicals, among others.
Maria Carolina Lacerda joined the Board of Directors of IHS Holding Limited in October 2021 as a Non-Executive Independent Director. Ms. Lacerda has over 25 years of experience in the financial industry and has held various senior management positions throughout her career, including at UBS Investment Bank, UNIBANCO, Deutsche Bank, Merrill Lynch, Inc. and Bear, Stearns & Company, Inc. Ms. Lacerda has served as an independent member of the board of directors of BB Seguridade RI since April 2023, of PagBank PagSeguro since January 2023, of China Three Gorges Brasil since June 2022, of Rumo S.A. since May 2021, and of Hypera Pharma since October 2016. Ms. Lacerda previously served as a board member of Vibra Energia (formerly BR Distribuidora) between 2019 and 2022, and between 2012 and 2016 she served as a board member of ANBIMA (Associação Brasileira das Entidades dos Mercados Financeiros e de Capitais), CNF (Confederação Nacional das Instituições Financeiras) and the Listing Chamber at BM&FBovespa in Brazil.
Nicholas Land joined the Board of Directors of IHS Holding Limited in August 2019 as a Non-Executive Independent Director. Mr. Land has served as the Deputy Chair of Thames Water Utilities Ltd since 2017 and as Chair of The Instant Group Ltd since 2019. Mr. Land has also been a member of the Board of Trustees of the Vodafone Group Foundation since 2008, serving as Chair from 2011. He has also served as an adviser to the Board of Dentons UK EMEA LLP since 2007 and has been Chair of the Private Equity Reporting Group of the British Venture Capital Association since 2012. Mr. Land served on the board of Astro Lighting Holdings Ltd from 2017 to 2022. Mr. Land has also previously served as a non-executive director of Vodafone Group plc, Royal Dutch Shell plc, Alliance Boots GmbH, Ashmore Group plc and Signature Aviation plc. Mr. Land was a Non-Executive Director of the Financial Reporting Council, chairing its Codes and Standards Committee, from 2011 to 2020. Mr. Land is qualified as a UK Chartered Accountant and had a 36-year career with Ernst & Young LLP, retiring as Executive Chairman of the firm in 2006.
Phuthuma Nhleko joined the Board of Directors of IHS Holding Limited in October 2021 as a Non-Executive Independent Director. Mr. Nhleko previously served as Chief Executive of MTN Group from 2002 to 2011 and continued to serve as Non-Executive Director and Chair of the MTN Group board from 2013 to 2019.
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Mr. Nhleko is currently Chairman of the Phembani Group (PTY) Ltd, a position he has held since 2011. He also currently serves as Chairman of Tullow Oil Plc and of the Johannesburg Stock Exchange, or the JSE. Mr. Nhleko also serves as a director of Engen, TBWA South Africa, and Phembani Remgro Infrastructure Fund Managers. Previously, he served on the boards of BP plc from 2011 to 2016 and Anglo American from 2011 to 2015. In addition, during his tenure as MTN Group CEO, Mr. Nhleko was a non-executive director at the GSM Association, the global trade association for mobile phone operators. Prior to joining MTN Group, Mr. Nhleko served as a director of Nedbank Group Limited and Old Mutual Life (SA).
Aniko Szigetvari served on the Board of Directors of IHS Holding Limited from July 2014 to February 2021 and rejoined the Board of Directors in October 2021 as a Non-Executive Independent Director. Ms. Szigetvari is the founding partner of Atlantica Ventures, an African impact focused venture capital fund investing in early-stage startups building technology and technology-enabled businesses. She serves as board committee chair and advisory board member of various investee companies, including Sendmarc Inc., where she has served on the board as a non-executive director since January 2023 and as Chair since November 2023. Prior to Atlantica Ventures, Ms. Szigetvari had 20 years’ experience with the International Finance Corporation, or IFC, beginning in 1998, where she focused on emerging markets principal investing and financing, primarily in the telecommunication, media, and technology, or TMT, sectors. For eight years she managed IFC’s TMT business, first as the Head of the Africa and Latin America TMT businesses, then including four years as Global Head of the TMT group from 2015 to 2019, leading investment and portfolio activities across all emerging markets. Prior to joining IFC, Ms. Szigetvari held roles at DHL, Kraft Foods and McKinsey & Company.
Appointment Rights
Pursuant to our shareholders’ agreement with certain of our shareholders, certain of our shareholders were given rights to designate directors for nomination by our board of directors from time to time, based on a minimum shareholding level. Currently, Oranje-Nassau Développement S.C.A. FIAR (“Wendel”) maintains the minimum beneficial ownership requirement to make such a designation for nomination under the shareholders’ agreement, and our current board member, Frank Dangeard, was initially appointed to our board pursuant to such designation right by Wendel.
B. Compensation
We set out below the amount of compensation paid and benefits in kind provided by us or our subsidiaries to our executive officers and members of our board for services in all capacities to us or our subsidiaries for the year ended December 31, 2023, as well as the amount contributed by us or our subsidiaries to retirement benefit plans for our executive officers and members of our board.
Executive Officer and Director Compensation
The compensation for each of our executive officers is comprised of the following elements: base salary, bonus, and contractual benefits such as pension, allowances and, where legally obligated, end of service contributions. Total amount of compensation paid and benefits in kind provided to our executive officers and members of our board for the year ended December 31, 2023 was $18,508,467. We do not currently maintain any deferred compensation, bonus or profit-sharing plan for the benefit of our executive officers; however, our executive officers are eligible to receive annual bonuses pursuant to the terms of their service agreements, and our executive officers received rights under the 2021 Omnibus Incentive Plan (as defined below) of up to 1,789,369 ordinary shares during the year ended December 31, 2023.
In the year ended December 31, 2023, we did not set aside or accrue any amounts to provide pension, retirement or similar benefits to our executive officers and members of our board.
Share Incentive Plans
Non-Employee Director Grants
In connection with our IPO, certain non-employee directors received restricted stock unit grants over a total of 259,784 ordinary shares, of which 222,672 ordinary shares have been issued and rights over 37,112 ordinary shares remained subject to vesting as of December 31, 2023.
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Long Term Incentive Plan
Prior to the consummation of our IPO and adoption of the 2021 Omnibus Incentive Plan, we established a Long Term Incentive Plan, or LTIP, pursuant to which we granted options to purchase ordinary shares of IHS Holding Limited, to our executive officers, directors and other employees. The LTIP was administered by our board of directors or a committee of our board of directors. The plan administrator selected the individuals who would receive awards under the plan, as well as the amount of the award to be granted to each individual, in each case consistent with the terms of the LTIP.
As of December 31, 2023, conditional rights had vested over 21,765,849 ordinary shares. As of December 31, 2023, there were no remaining subsisting conditional rights under the LTIP.
2021 Omnibus Incentive Plan
We adopted the IHS Holding Limited 2021 Omnibus Incentive Plan, or the 2021 Omnibus Incentive Plan, on September 30, 2021, and it became effective upon the approval of our shareholders on October 4, 2021, or the Effective Date. If not previously terminated by the Board, the 2021 Omnibus Incentive Plan will terminate on the close of business on the ten-year anniversary of the Effective Date. Under the 2021 Omnibus Incentive Plan, subject to adjustments for certain changes in our capital structure (described below under “Adjustments”), a maximum of 22,120,000 of our ordinary shares may be issued to our eligible employees, consultants, and non-employee directors and of our affiliates. Only our employees or employees of our affiliates are eligible to receive incentive stock options. All shares reserved for issuance under the 2021 Omnibus Incentive Plan may be used for incentive stock options. As of December 31, 2023, there are subsisting conditional rights under the 2021 Omnibus Incentive Plan over up to 5,974,602 ordinary shares.
Types of Awards. The 2021 Omnibus Incentive Plan provides for grants of incentive stock options, non-statutory options, stock appreciation rights, restricted stock, restricted stock units, other stock-based awards, and other-cash awards, each an Award, and, collectively, Awards. Each Award will be evidenced by an award agreement which will govern that Award’s terms and conditions.
Plan Administration. The 2021 Omnibus Incentive Plan is generally administered by our Board unless and until the Board delegates administration to a committee of the Board (the “Committee”). The Committee will make all determinations in respect of the 2021 Omnibus Incentive Plan, and will have no liability for any action taken in good faith. The 2021 Omnibus Incentive Plan is administered by our Board with respect to Awards to non-employee directors.
Adjustments. In the event of a change in the number or class of the outstanding ordinary shares due to split-ups, combinations, mergers, consolidations or recapitalizations, or by reason of stock dividends, the number or class of shares which thereafter may be issued pursuant to Awards granted under the 2021 Omnibus Incentive Plan, both in the aggregate and as to any grantee, and the number and class of shares then subject to outstanding Awards and the exercise price per share of outstanding options or stock appreciation rights, will be adjusted to reflect such change, all as determined by the Committee. In the event of any other change in the number or kind of outstanding shares, or of any stock or other securities or property into which such shares will have been changed, or for which it will have been exchanged, if the Committee determines that such change equitably requires an adjustment in any Award that has been or may be granted under the 2021 Omnibus Incentive Plan, such adjustment will be made in accordance with such determination subject to certain limitations set out in the 2021 Omnibus Incentive Plan. In addition, in the event that (i) we merge or are consolidated with another entity and in connection therewith consideration other than equity is provided to our shareholders or outstanding Awards are not to be assumed by the resulting entity, (ii) all or substantially all of our assets are acquired by another person, (iii) we are reorganized or liquidated or (iv) we enter into a written agreement to undergo a transaction specified in (i), (ii) or (iii) above, the Committee may, in its discretion and upon advance notice to the affected persons, cancel any outstanding Awards and cause the holders thereof to be paid in cash, stock or other property (or any combination thereof) the value of the Awards based on the price per share received or to be received by other shareholders of our company in such event.
Change in Control. In the event of a change in control, notwithstanding any provision in the 2021 Omnibus Incentive Plan to the contrary, the Committee may, in its sole discretion, take any action with respect to all or any portion of a particular outstanding Award, including, but not limited to, the following, in each case, except as otherwise provide in a written agreement between the grantee and the Company: (i) if Awards are not converted, assumed, or replaced by a successor, the Awards will become fully exercisable and vested, with any performance conditions to become satisfied based on the achievement of an assumed level of performance (which may be actual, target or maximum performance), as determined by the Committee; (ii) if the Award is assumed or replaced by a successor with a comparable award, then the new award must (a) provide the grantee with substantially equivalent terms and conditions; and (b) become fully vested and exercisable immediately upon an involuntary termination of the grantee’s employment or service, as applicable, by the Company without cause within eighteen (18) months following the Change in Control, with any performance conditions to be converted based on the achievement of an assumed level of performance (which may be actual, target or maximum performance), as determined by the Committee; (iii) settle Awards previously deferred; (iv) adjust, substitute, convert, settle and/or terminate outstanding Awards as the Committee, in its sole discretion, deems appropriate and consistent with the plan’s purposes; and (v) in the case of any Award with an exercise price that equals or exceeds the price paid for a share of ordinary shares in connection with the change in control, the Committee may cancel the Award without the payment of consideration therefor.
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To the extent practicable, any actions taken by the Committee may occur in a manner and at a time which allows affected grantees the ability to participate in the change in control transactions with respect to the ordinary shares subject to their Awards. In addition, in the event of a change in control, the Committee may, in its sole discretion and upon at least ten (10) days’ advance notice to the affected persons, cancel any outstanding Awards and pay to the holders thereof, in cash or stock, or any combination thereof, the value of the Awards based upon the price per share of ordinary shares received or to be received by other shareholders of the Company in such change in control.
Amendment. In general, the Board can modify, alter, amend or terminate the 2021 Omnibus Incentive Plan (at any time and with or without retroactive effect) in whole or in part in its discretion without approval of the shareholders or any other person, except that no amendment will become effective unless approved by our shareholders to the extent shareholder approval is necessary to satisfy any applicable law or securities exchange listing requirements. However, no amendment to or termination of the 2021 Omnibus Incentive Plan may materially and adversely affect any rights of any grantee without his or her written consent. The Board may, at any time, amend the terms of an outstanding Award, except that no amendment may impair the rights under any Award without the written consent of the affected grantee.
Indemnification
Executive officers and directors have the benefit of indemnification provisions in our Articles. These provisions provide that our board of directors and officers shall be indemnified from and against all liability which they incur in execution of their duty in their respective offices, except liability incurred by reason of such director’s or officer’s dishonesty, willful default or fraud. Additionally, we entered into indemnification agreements with our executive officers and directors which include specific protections on the indemnification of liabilities for our executive officers and directors.
Insofar as indemnification of liabilities arising under the Securities Act may be permitted to executive officers and directors or persons controlling us pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
C. Board Practices
Board Composition
Our board of directors is composed of 9 members. Sam Darwish serves as the Chairman of our board of directors and John Ellis Bush serves as Lead Independent Director. Our Articles provide that directors are divided into three classes designated as Class I, Class II and Class III, respectively, and directors will generally be elected to serve staggered three year terms.
| ● | Frank Dangeard and Phuthuma Nhleko serve as Class I Directors whose current term of office shall expire at the third annual general meeting of the Company in 2024. |
| ● | John Ellis Bush, Bashir El-Rufai and Nicholas Land serve as Class II Directors whose current term of office shall expire at the fourth annual general meeting of the Company in 2025. |
| ● | Sam Darwish, Ursula Burns, Maria Carolina Lacerda and Aniko Szigetvari serve as Class III Directors whose current term of office shall expire at the fifth annual general meeting of the Company in 2026. |
A Director whose term has expired may be reappointed in accordance with the terms of the Articles. At any annual general meeting where a resolution for the election of directors is proposed, a plurality of the votes cast shall be sufficient to elect a director. In addition, our directors may appoint any person to be a director and assign such director to a class either as a result of a casual vacancy or as an additional director. Our Articles provide that a director may be removed by special resolution of the shareholders or for “cause” (as defined therein) by notice from not less than 75% of the directors then in office. Each of our directors holds office until he or she resigns or is removed from office in accordance with our Articles.
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Our board of directors has determined that eight Directors qualify as “independent” under the NYSE listing standards: John Ellis Bush, Ursula Burns, Frank Dangeard, Bashir El-Rufai, Nicholas Land, Maria Carolina Lacerda, Aniko Szigetvari and Phuthuma Nhleko.
In January 2024, we entered into a settlement agreement with Wendel and agreed to certain changes to the Articles to be proposed for shareholders’ approval at the Company’s annual general meeting for fiscal year 2024 including, among other things, a proposed declassification of our Board in two phases, with periods extending through annual general meetings for fiscal years 2024 and 2025. If the proposal is approved by shareholders, following the annual general meeting for fiscal year 2025, all directors will be elected on an annual basis.
See Item 6.A. “Directors and Senior Management” for information regarding the periods during which our directors have served on the board of directors.
Foreign Private Issuer Status
We are a “foreign private issuer” (as such term is defined in Rule 3b-4 under the Exchange Act), and our shares are listed on the NYSE. Under the NYSE listing standards, NYSE-listed companies that are foreign private issuers are permitted to follow home country practice in lieu of the corporate governance provisions specified by the NYSE with limited exceptions.
We believe the following to be the significant differences between our corporate governance practices and those applicable to U.S. companies under the NYSE listing standards:
| ● | The NYSE rules require that the quorum for any meeting of the holders of shares should be sufficiently high to ensure a representative vote and give careful consideration to provisions fixing any proportion less than a majority of the outstanding shares as the quorum for shareholders’ meetings. We follow the corporate governance practice of our home country, the Cayman Islands, which permits less than a majority of the outstanding shares as the quorum for shareholders’ meetings. |
| ● | The NYSE rules also require shareholder approval for equity compensation plans and material revisions to those plans. We follow the corporate governance practice of our home country, the Cayman Islands, which does not require shareholder approval for these matters. |
We may in the future decide to use other foreign private issuer exemptions with respect to some or all of the other NYSE listing requirements. For example, under the NYSE rules, U.S. domestic listed, non-controlled companies are required to have a majority independent board, which is not required under the Companies Act of the Cayman Islands, our home country. NYSE rules also require U.S. domestic listed, non-controlled companies to have a compensation committee and a nominating and corporate governance committee, each composed entirely of independent directors, which are not required under our home country laws.
Following our home country governance practices may provide less protection than is given to investors under the NYSE listing requirements applicable to domestic issuers. For more information, see Item 3.D. “Risk Factors — Risks Relating to Ownership of our Ordinary Shares — As we are a “foreign private issuer” and follow certain home country corporate governance practices, our shareholders may not have the same protections afforded to shareholders of companies that are subject to all NYSE corporate governance requirements.”
Audit Committee
The audit committee consists of Nicholas Land, Ursula Burns and Aniko Szigetvari. Nicholas Land serves as Chair of the committee. The audit committee consists exclusively of independent Directors who are financially literate, and Nicholas Land is considered an “audit committee financial expert” as defined by the SEC. Our board has determined that Nicholas Land, Ursula Burns and Aniko Szigetvari each satisfy the “independence” requirements set forth in Rule 10A 3 under the Exchange Act. The audit committee is governed by a charter that complies with NYSE listing standards.
The audit committee assists the board in overseeing our accounting and financial reporting processes and the audits of our financial statements, and is responsible for, among other things:
| ● | the appointment, compensation, retention and oversight of any accounting firm engaged for the purpose of preparing or issuing an audit report or performing other audit services; |
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| ● | pre-approving the audit services and non-audit services to be provided by our independent auditor before the auditor is engaged to render such services; |
| ● | evaluating the independent auditor’s qualifications, performance and independence, and presenting its conclusions to the full board on at least an annual basis; |
| ● | reviewing and discussing with the board and the independent auditor our annual audited financial statements and any quarterly financial statements prior to the filing of the respective SEC reports; |
| ● | reviewing our compliance with laws and regulations; and |
| ● | approving or ratifying any related party transaction (as defined in our related party transaction policy) in accordance with our related party transaction policy. |
The audit committee meets at least four times per year. The audit committee meets at least once per year with our independent accountant, without our executive officers being present.
Remuneration Committee
The remuneration committee consists of Aniko Szigetvari, John Ellis Bush and Frank Dangeard. Aniko Szigetvari serves as Chair of the committee.
The remuneration committee assists the board in determining CEO remuneration and is responsible for, among other things:
| ● | identifying, reviewing and approving corporate goals and objectives relevant to the compensation of our Chief Executive Officer, evaluating the Chief Executive Officer’s performance in light of these objectives and goals and, based upon that evaluation, setting the Chief Executive Officer’s compensation; |
| ● | reviewing and setting or making recommendations to the Board regarding compensation for our other executive officers; |
| ● | reviewing and setting or making recommendations to the Board regarding director compensation; and |
| ● | overseeing and administering our incentive compensation and equity incentive plans. |
Nominations and Corporate Governance Committee
The nominations and corporate governance committee consists of John Ellis Bush, Ursula Burns and Nicholas Land. John Ellis Bush serves as Chair of the committee.
The nominations and corporate governance committee assists our board in identifying individuals qualified to become members of our board consistent with criteria established by our board and in developing our corporate governance principles and is responsible for, among other things:
| ● | reviewing and evaluating the composition, function and duties of our board; |
| ● | reviewing our management succession planning; |
| ● | recommending nominees for selection to our board and its corresponding committees; |
| ● | making recommendations to the board as to determinations of director independence; |
| ● | leading the board in a self-evaluation, at least annually, to determine whether it and its committees are functioning effectively; and |
| ● | developing and recommending to the board our corporate governance guidelines and reviewing and reassessing the adequacy of such corporate governance guidelines and recommending any proposed changes to the board. |
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Health, Safety, Security and Environmental Committee
The health, safety, security and environmental committee consists of Phuthuma Nhleko, Maria Carolina Lacerda and Frank Dangeard. Phuthuma Nhleko serves as Chair of the committee.
The health, safety, security and environmental committee assists our board in its oversight and support of the implementation and effectiveness of our environmental, health and safety risk-management procedures, policies, programs and initiatives, and is responsible for, among other things:
| ● | reviewing and evaluating the status of our health, safety and environmental performance, including processes to ensure compliance with internal policies and goals and applicable laws and regulations; |
| ● | reviewing management reports regarding its efforts with regard to environmental and social matters, including our policies, programs and strategies related to environmental stewardship, corporate citizenship and other social and public matters of significance to us; |
| ● | reviewing and providing input to us on the management of current and emerging health, safety and environmental issues, policies, laws and regulations; and |
| ● | reviewing, at least annually, processes designed to mitigate key health, safety and environmental risks. |
Risk Management
Our board of directors is responsible for the establishment and oversight of our risk management framework. The audit committee is responsible for discussing our policies with respect to risk assessment and risk management, including guidelines and policies to govern the process by which our exposure to risk is handled. The audit committee oversees how our management monitors compliance with our risk management policies and procedures and reviews the adequacy of the risk management framework in relation to the risks we face. The audit committee also oversees management of all risks, including with respect to financial reporting, accounting, and audit matters, as well as cybersecurity and data privacy matters. While each committee is responsible for evaluating certain risks and overseeing the management of such risks, the entire board is regularly informed through committee reports about such risks.
Our board of directors is supported by various management functions that check and undertake both regular and ad hoc risk assessment reviews in compliance with established controls and procedures. The objective of the risk management process at IHS Towers is to ensure that our board of directors and management are aware of the key risks that could threaten the achievement of business objectives and that appropriate mitigation plans are in place to avoid, eliminate, or minimize the impact of such risks, should they arise. Risk assessments typically consider the potential impacts should a risk occur and the likelihood of the risk occurring, as well as the root causes of individual risks and the need for any additional controls or mitigation actions. Risks are prioritized, and risk profiles will cover a mix of external risks over which management may have little control as well as internal risks that management should be capable of mitigating.
Our internal audit process is a fundamental component of the risk management process. Its objective is to provide reasonable assurance to our board of directors and management that the controls put in place to mitigate our key risks are designed appropriately and operating effectively. A critical input into planning internal audit work is a good understanding of the risk profiles in all our markets, functions, and projects, as well as the key risks facing the company. The results of internal audit reviews are presented to the audit committee. The output of all internal audit work is an important input into the development of the risk assessments we perform.
To be able to appropriately respond to risks when they arise, we have in place regularly updated business continuity plans covering a wide range of risks, such as natural catastrophes, political violence or health risks to employees, that have been developed to provide management with guidance on actions that should be taken in the event an incident occurs threatening business performance.
Communications to our Board of Directors
Shareholders and other interested parties may communicate directly with our independent directors by sending a written communication in an envelope addressed to: Board of Directors (Independent Directors), c/o General Counsel, Legal Department, IHS Holding Limited, 1 Cathedral Piazza, 123 Victoria Street, London SW1E 5BP, United Kingdom.
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Shareholders and other interested parties may communicate directly with the full board of directors by sending a written communication in an envelope addressed to: Board of Directors, c/o General Counsel, Legal Department, IHS Holding Limited, 1 Cathedral Piazza, 123 Victoria Street, London SW1E 5BP, United Kingdom.
Corporate Governance Guidelines
Our Board of Directors has adopted corporate governance guidelines (the “Corporate Governance Guidelines”) that serve as a flexible framework within which our Board of Directors and its committees operate. These guidelines cover a number of areas including the size and composition of our Board of Directors, director qualification standards, director responsibilities, role of the lead director, meetings of independent directors, committee responsibilities and assignments, Board member access to management and independent advisors, director communications with third parties, director compensation, director orientation and continuing education, and management succession planning.
The Corporate Governance Guidelines are publicly available under the “Governance” section of our investor relations website at http://www. https://www.ihstowers.com/investors. The information on our website is not incorporated by reference into this Annual Report.
D. Employees
As of December 31, 2023, we had 2,988 employees.
The table below sets out the number of employees, by geography, as of December 31, 2023:
|
|
As of |
Geography |
|
December 31, 2023 |
Nigeria |
|
1,384 |
Côte d’Ivoire |
|
172 |
Cameroon |
|
145 |
Zambia |
|
136 |
Rwanda |
|
79 |
Kuwait |
|
48 |
Latin America |
|
515 |
South Africa |
|
127 |
Egypt |
|
11 |
Other |
|
371 |
Total |
|
2,988 |
The table below sets out the number of employees, by category, as of December 31, 2023:
|
|
As of |
Department |
|
December 31, 2023 |
Finance |
|
368 |
Technical |
|
1,623 |
Information Technology |
|
176 |
Commercial |
|
107 |
Legal |
|
114 |
Human resources |
|
182 |
Executive |
|
41 |
Other |
|
377 |
Total |
|
2,988 |
As of December 31, 2023, we had engaged third-party contractors from over 2,719 suppliers, who performed various functions including in connection with site acquisition, construction, supply of equipment and spare parts, access management, security and preventative and corrective maintenance of sites, as well as power management, including the supply of diesel, for certain of our sites.
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In Cameroon, we have 55 unionized employees, representing approximately 38% of our staff, while in Côte d’Ivoire, we have 51 unionized employees, who represent approximately 30% of employees. In both countries we are subject to a National Collective Agreement of Trade, however this is issued at a country level and is not specific to us as a company. In addition, in Brazil (Latin America), all employees are represented by a union and covered by the same Collective Agreement, as determined by local legislation.
We have never experienced labor-related work stoppages or strikes and believe that our relations with our employees are satisfactory.
E. Share Ownership
For information regarding the share ownership of directors and officers, see Item 7.A. “Major Shareholders and Related Party Transactions—Major Shareholders.” For information as to our equity incentive plans, see Item 6.B. “Director, Senior Management and Employees—Compensation—Share Incentive Plans.”
F. Disclosure of a Registrant’s Action to Recover Erroneously Awarded Compensation.
None.
Item 7. Major Shareholders and Related Party Transactions
A. Major Shareholders
The following table sets forth information relating to the beneficial ownership of our ordinary shares as of February 15, 2024 by:
| ● | each person, or group of affiliated persons, known by us to beneficially own 5% or more of our outstanding ordinary shares; |
| ● | each of our executive officers and directors; and |
| ● | all of our executive officers and directors as a group. |
The number of ordinary shares beneficially owned by each entity, person, executive officer or director is determined in accordance with the rules of the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under such rules, beneficial ownership includes any shares over which the individual has sole or shared voting power or investment power as well as any shares that the individual has the right to acquire within 60 days of February 15, 2024 through the exercise of any option, warrant or other right. Except as otherwise indicated, and subject to applicable community property laws, the persons named in the table have sole voting and investment power with respect to all ordinary shares held by that person.
Ordinary shares that a person has the right to acquire within 60 days of February 15, 2024 are deemed outstanding for purposes of computing the percentage ownership of the person holding such rights, but are not deemed outstanding for purposes of computing the percentage ownership of any other person, except with respect to the percentage ownership of all executive officers and directors as a group. Unless otherwise indicated below, the address for each beneficial owner listed is c/o IHS Holding Limited, 1 Cathedral Piazza, 123 Victoria Street, London SW1E 5BP, United Kingdom.
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For further information regarding material transactions between us and principal shareholders, see Item 7.B. “Major Shareholders and Related Party Transactions—Related Party Transactions.”
Name of beneficial owner |
|
Number |
|
% |
|
5% or Greater Shareholders |
|
|
|
|
|
Mobile Telephone Networks (Netherlands) B.V.(1) |
|
85,176,719 |
|
25.6 |
% |
Entities affiliated with Wendel(2) |
|
62,975,396 |
|
18.9 |
% |
Korea Investment Corporation(3) |
|
21,666,802 |
|
6.5 |
% |
Warrington Investment Pte Ltd(4) |
|
18,055,054 |
|
5.4 |
% |
Executive Officers and Directors |
|
|
|
|
|
Sam Darwish |
|
12,787,788 |
|
3.8 |
% |
Mohamad Darwish |
|
1,780,759 |
|
* |
|
William Saad |
|
3,504,767 |
|
1.1 |
% |
William Bates |
|
19,984 |
|
* |
|
Steve Howden |
|
174,426 |
|
* |
|
Ayotade Oyinlola |
|
154,029 |
|
* |
|
Colby Synesael |
|
162,987 |
|
* |
|
Mustafa Tharoo |
|
484,003 |
|
* |
|
Ursula Burns |
|
37,112 |
|
* |
|
John Ellis Bush |
|
18,556 |
|
* |
|
Frank Dangeard |
|
- |
|
* |
|
Bashir El-Rufai(5) |
|
1,075,238 |
|
* |
|
Bryce Fort |
|
- |
|
* |
|
Maria Carolina Lacerda |
|
27,834 |
|
* |
|
Nicholas Land |
|
37,112 |
|
* |
|
Phuthuma Nhleko |
|
27,834 |
|
* |
|
Aniko Szigetvari |
|
27,834 |
|
* |
|
All executive officers and board members as a group (17 persons) |
|
20,320,263 |
|
6.1 |
% |
* |
Indicates beneficial ownership of less than 1% of the total issued and outstanding ordinary shares. |
| (1) | Based solely on a Schedule 13G filed with the SEC on February 14, 2022, MTN Group Limited, Mobile Telephone Networks Holdings Limited, MTN International (Pty) Limited, MTN International (Mauritius) Limited, MTN (Dubai) Limited, Mobile Telephone Networks (Netherlands) Cooperatieve U.A., and Mobile Telephone Networks (Netherlands) B.V. may be deemed to beneficially own and have shared voting power and shared dispositive power over 85,176,719 ordinary shares. Mobile Telephone Networks (Netherlands) B.V. is ultimately a wholly owned subsidiary of MTN Group Limited, the parent company of each of the reporting persons named in this footnote. The address for MTN Group Limited, Mobile Telephone Networks Holdings Limited and MTN International (Pty) Limited is 216 14th Avenue, Fairland, Johannesburg, South Africa 2195. The address for MTN International (Mauritius) Limited is c/o Rogers Capital Corporate Services Limited, Rogers House, 5 President John Kennedy Street, Port Louis, Mauritius. The address for MTN (Dubai) Limited is Unit OT 08-30, OT 08-31, OT 08-32 , OT 08-33 , OT 08-34 , OT 08-35, Level 8, Central Park Offices, Dubai International Financial Centre, P O Box 506735, Dubai, United Arab Emirates. The address for Mobile Telephone Networks (Netherlands) Coöperatieve U.A. and Mobile Telephone Networks (Netherlands) B.V. is Westerdoksdijk 423, 1013 BX Amsterdam, The Netherlands. |
| (2) | Based solely on a Schedule 13G/A filed with the SEC on February 13, 2023, and information known to the Company (a) Wendel SE may be deemed to beneficially own and has shared voting and dispositive power over 62,975,396 ordinary shares, and (b) Oranje-Nassau Développement S.C.A. FIAR, or OND, may be deemed to beneficially own and has shared voting and dispositive power over 62,975,396 ordinary shares. OND is managed by its general partner Wendel Luxembourg SA ( the “General Partner”). A majority vote of directors is required for any action by the General Partner, and no single director has a veto right. Each of the General Partner and its boards of directors disclaims beneficial ownership of the shares of the Company held by OND. The address for OND is 5, rue Pierre d’Aspelt L1142 Luxembourg. The address for Wendel SE is 89, rue Taitbout, Paris, France, 75009. |
| (3) | Based solely on a Schedule 13G filed with the SEC on February 15, 2022, Korea Investment Corporation may be deemed to beneficially own and has sole voting power and dispositive power over 21,666,802 ordinary shares. Korea Investment Corporation is a statutory juridical corporation established under the Korea Investment Corporation Act of the Republic of Korea. The address for Korea Investment Corporation is 17F-18F State Tower Namsan, 100 Toegye-ro, Jung-gu, Seoul, 04631, South Korea. |
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| (4) | Based solely on a Schedule 13G filed with the SEC on February 15, 2022, each of GIC Private Limited (“GIC PL”), GIC Special Investments Private Limited (“GIC SI”) and Warrington Investment Pte Ltd. (“Warrington”) may be deemed to beneficially own and have shared voting and dispositive power over 18,055,054 ordinary shares. GIC SI is wholly owned by GIC PL and is the private equity investment arm of GIC PL. GIC PL is wholly owned by the Government of Singapore (“GoS”) and was set up with the sole purpose of managing Singapore’s foreign reserves. The GoS disclaims beneficial ownership of such shares. The address for each of GIC PL, GIC SI and Warrington is 168 Robinson Road, #37-01 Capital Tower, Singapore 068912. |
| (5) | Includes 1,047,404 ordinary shares owned by African Tower Investment Limited over which Mr. El-Rufai has beneficial ownership. The address for Mr. El-Rufai is c/o IHS GCC Limited, Unit 802, Level 8, The Exchange, Dubai International Financial Centre, P.O. Box 506528, Dubai, United Arab Emirates. |
As a number of our shares are held in book-entry form, we are not aware of the identity of all our shareholders. To our knowledge, as of February 29, 2024, we had 130,671,663 ordinary shares held by eight US resident shareholders of record.
To our knowledge, other than as provided in the table above, our other filings with the SEC and this Annual Report, there has been no significant change in the percentage ownership held by any major shareholder since January 1, 2021.
The major shareholders listed above do not have voting rights with respect to their ordinary shares that are different from the voting rights of other holders of our ordinary shares, except that for so long as the number of ordinary shares held by MTN Group is greater than 20% of the total number of ordinary shares in issue, each ordinary share held by MTN Group shall entitle MTN Group to the number of votes per ordinary share calculated by dividing 20% of the total number of ordinary shares in issue by the number of ordinary shares held by MTN Group.
We are not aware of any arrangement whereby we are directly or indirectly owned or controlled by another corporation, by any foreign government or by any other natural or legal person severally or jointly, nor are we aware of any arrangement that may, at a subsequent date, result in a change of control of our company.
B. Related Party Transactions
The following is a description of related party transactions since January 1, 2023.
Shareholders’ Agreement
In connection with our IPO, we and certain of our shareholders entered into a shareholders’ agreement, or the Shareholders’ Agreement. The Shareholders’ Agreement provides certain rights to our shareholders party to it, including rights to designate directors for nomination by our board of directors, request matters to be added to the agenda for shareholder meetings and approval rights with respect to certain proposed actions of the Company. The Shareholders’ Agreement also set out certain restrictions on our shareholders’ ability to sell or otherwise transfer their respective shares, although as of December 31, 2023, no lock-up restrictions remain under our Shareholders’ Agreement, as described below.
Shareholder Lock-Up
Our shareholders party to the Shareholders’ Agreement and any Locked-up Transferees, which we collectively refer to as the Locked-up Shareholders, were prohibited from selling any shares owned directly or indirectly by them immediately prior to our IPO, or the Subject Shares, for a period of up to 30 months after October 13, 2021, ending on April 13, 2024, or the Lock-up Period, other than as described below and subject to a number of exceptions set out in the Shareholders’ Agreement.
The Subject Shares that remained locked-up became sellable in the following tranches:
| (a) | during the period commencing on October 14, 2023 and April 13, 2024, an additional 20% of the Post Greenshoe Shares, or the Block D Shares, will be Unblocked, and each Locked-up Shareholder may sell its pro rata share (as calculated in accordance with the Shareholders’ Agreement) of the Block D Shares (as well as the Block A Shares, the Block B Shares and the Block C Shares) without restriction under the Shareholders’ Agreement subject to compliance with securities law; and |
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| (b) | any time after the expiry of the Lock-up Period, any remaining Subject Shares may be sold without restriction under the Shareholders’ Agreement subject to compliance with securities law. |
Any Subject Shares held by a Locked-up Shareholder holding Subject Shares representing less than 2% of our total issued shares were also able to be sold without restriction under the Shareholders’ Agreement subject to compliance with securities law at any time as of October 14, 2023.
The Shareholders’ Agreement also contained provisions that permitted a sub-committee of our board of directors to waive or shorten the restrictions described above. Our board exercised its right to move forward the release of the final blocks of locked-up shares from April 2024 to October 2023, and as of December 31, 2023, no lock-up restrictions remain under our Shareholders’ Agreement.
Management Shareholders
As of December 31, 2023, Management Shareholders have received 19,303,113 ordinary shares pursuant to the terms of the LTIP, as further described in Item 6.B. “Director, Senior Management and Employees—Compensation — Share Incentive Plans — Long Term Incentive Plan.”
Director Designation
Our shareholders party to the Shareholders’ Agreement (and any person who received Subject Shares transferred in compliance with the Shareholders’ Agreement and was thereafter required to comply with the sell-down arrangements contained in the Shareholders’ Agreement) are collectively referred to as the Locked-up Shareholders. For so long as the Locked-up Shareholders beneficially own, directly or indirectly, in aggregate, at least 20% of our issued shares, our Board will consist of a minimum of five and a maximum of 15 directors. Additionally, each of ECP and Wendel is entitled to designate one director for nomination by our board of directors for so long as it beneficially owns, directly or indirectly, at least 10% of our issued shares.
Consent Rights
For so long as the Locked-up Shareholders beneficially own, directly or indirectly, in aggregate, 20% or more of our issued shares, the approval of a resolution passed by a simple majority of the votes cast by the holders of our ordinary shares at a duly convened general assembly (and including the votes of Locked-up Shareholders collectively holding at least 20% or more our issued shares) is required for us to take certain actions, including: (a) entry into or material revisions of certain equity compensation plans; (b) the issuance of shares, or securities convertible into or exchangeable for shares, above certain thresholds; and (c) the issuance of shares, or securities convertible into or exchangeable for shares, to directors, officers and the beneficial owners of more than 5% of our shares above certain thresholds.
Shareholder Meetings
Any two or more Locked-up Shareholders together holding at least 25% in aggregate of our issued shares are entitled to request additional business be included in the agenda for any general meeting.
As used in this section:
“Management Shareholders” refers to certain members of management.
“Post Greenshoe Shares” refers to a number equal to the sum of all of the Locked-up Shareholder’s Post Greenshoe Shares held by all Locked-up Shareholders.
“Unblocked” refers to actions taken by us with respect to shares such that our registrar will no longer prevent such Shares from being registered on the public trading system. For the avoidance of doubt, reference to such shares being Unblocked shall not alter any status of such shares as restricted securities (within the meaning of Rule 144 under the Securities Act) or other restrictions on transfer to which such shares may be subject by operation of law or regulation.
“Wendel” refers to Oranje-Nassau Développement S.C.A. FIAR and Africa Telecom Towers S.C.S.
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Registration Rights Agreement
In connection with our IPO, we and certain of our shareholders entered into a registration rights agreement, or the Registration Rights Agreement. The Registration Rights Agreement entitles the Holders (as defined in the Registration Rights Agreement) to certain “demand” and “piggyback” registration rights as described below.
The Registration Rights Agreement allows one or more Holders together holding at least 5% of the Registrable Securities (as defined in the Registration Rights Agreement) up to three demand registrations (in the aggregate) over any 12-month period. The Registration Rights Agreement allows the Holders to request registration for all or any portion of their Registrable Securities, subject to customary underwriter cutbacks and certain arrangements with the MTN Group, which we refer to as the MTN Shareholder Arrangements. The Holders representing a majority of the Registrable Securities included in such offering may select the underwriters. In addition, MTN and Wendel may jointly nominate for appointment one bookrunner. Subject to certain requirements, we may suspend a request for registration for 90 days in the aggregate up to two times in any 12-month period.
Subject to eligibility, the Registration Rights Agreement also grants one or more Holders holding, alone or in the aggregate, at least 5% of the Registrable Securities the right to require us to file a shelf registration statement on Form F-3 (or any successor form). Additionally, in the event such a shelf registration statement is effective, upon the request of (i) one or more Holders representing, individually or in the aggregate, at least 5% of the Registrable Securities or (ii) any Holder to the extent requested beginning October 13, 2023, we shall be required to undertake an underwritten takedown offering.
When we or another Holder propose to register any of our ordinary shares subject to the terms of the Registration Rights Agreement, each Holder then holding Registrable Securities has the right to request that its Registrable Securities be included in such registration, subject to customary underwriter cutbacks and the MTN Shareholder Arrangements.
Pursuant to the Registration Rights Agreement, we have agreed to pay the fees and expenses associated with registration (excluding stock transfer taxes, underwriting fees, commissions or discounts). The Registration Rights Agreement contains customary provisions with respect to registration proceedings, underwritten offerings, and indemnity and contribution rights.
Relationship with MTN Group
One of our shareholders, MTN Group, is a related party of the MTN Customers. We have entered into MLAs separately with each of the MTN Customers in our relevant countries of operation, that expire in December 2024 and 2029 in Nigeria, March 2033 in Cameroon, April 2033 in Côte d’Ivoire, March 2024 in Zambia, April 2024 in Rwanda and April 2032 in South Africa. In addition to the MLAs, we also enter into SLAs from time to time with the MTN Customers. The MTN Customers accounted for 46%, 3%, 3%, 1%, 1% and 6% of our revenue for the year ended December 31, 2023.
Teneo Strategy LLC
During the year ended December 31, 2023, we entered into an arm’s length agreement for the provision of consulting services from Teneo Strategy LLC (“Teneo Strategy”). Ms Ursula Burns, a Non-Executive Director, is the Chairwoman of the Board of Teneo Worldwide, LLC. The total fees paid to Teneo Strategy for the year ended December 31, 2023 were $750,000.
Sublease of Office Space
During the year ended December 31, 2023, we entered into an agreement to sub-lease office space from a subsidiary company of Wendel Group. Under the sub-lease agreement, we paid rent and utilities amounting to $366,896.
Indemnification agreements
We entered into indemnification agreements with our executive officers and directors.
Our Articles provide for us to indemnify our directors and officers from and against all liability which they incur in execution of their duty in their respective offices, except liability incurred by reason of such director’s or officer’s dishonesty, willful default or fraud. See Item 6.B. “Director, Senior Management and Employees—Compensation — Indemnification” for a description of these indemnification agreements.
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Related party transaction policy
Our board of directors has adopted a written related party transaction policy that sets forth the policies and procedures for the review and approval or ratification of related person transactions. This policy covers related party transactions that may be required to be reported under the disclosure rules applicable to us.
C. Interests of Experts and Counsel
Not applicable.
Item 8. Financial Information
A. Consolidated Statements and Other Financial Information
Consolidated Financial Statements
See Item 18. “Financial Statements.”
Legal and Arbitration Proceedings
We are subject to various legal and regulatory proceedings, claims and actions. Although the outcome of these proceedings, claims and actions cannot be predicted with certainty, we do not believe that the outcome of any such proceedings, claims and actions would, in our management’s judgment, have a material adverse effect on our financial condition or results of operation, nor are we aware of any material legal and regulatory proceedings, claims and actions threatened against us.
Dividend Policy
We do not anticipate paying any cash dividends on our ordinary shares in the foreseeable future. We intend to retain all available funds and any future earnings to fund the development and expansion of our business. However, if we do pay a cash dividend on our ordinary shares in the future, we will pay such dividend out of our profits or share premium (subject to solvency requirements) as permitted under Cayman Islands law.
The amount of any future dividend payments we may make will depend on, among other factors, our strategy, future earnings, financial condition, cash flow, availability or ability under our existing financing arrangements, working capital requirements, capital expenditures and applicable provisions of our Articles. Any profits or share premium we declare as dividends will not be available to be reinvested in our operations.
Moreover, we are a holding company that does not conduct any business operations of our own. As a result, we are dependent upon cash dividends, distributions and other transfers from our subsidiaries to make dividend payments. The ability of certain of our subsidiaries to pay dividends is currently restricted by the terms of the 2027 Notes and IHS Holding Limited Notes and certain of our other debt agreements and instruments and may be further restricted by any future indebtedness we or they incur. See Item 5.B. “Operating and Financial Review and Prospects—Liquidity and Capital Resources—Indebtedness.”
We did not propose or pay dividends in the year ended December 31, 2023.
B. Significant Changes
None.
Item 9. The Offer and Listing
A. Offer and Listing Details
Our ordinary shares trade on the New York Stock Exchange under the trading symbol “IHS”.
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B. Plan of Distribution
Not applicable.
C. Markets
Our ordinary shares trade on the New York Stock Exchange under the trading symbol “IHS”.
D. Selling Shareholders
Not Applicable.
E. Dilution
Not applicable.
F. Expenses of the Issue
Not applicable.
Item 10. Additional Information
A. Share Capital
Not applicable.
B. Memorandum and Articles of Association
A copy of our amended and restated memorandum and articles of association is attached as Exhibit 1.1 to this Annual Report. The information called for by this Item is set forth in Exhibit 2.7 to this Annual Report and is incorporated by reference into this Annual Report.
C. Material Contracts
The following is a summary of each material contract, other than contracts entered into in the ordinary course of business, to which we are or have been a party, for the two years immediately preceding the date of this Annual Report:
| ● | Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to Amendment No. 1 to the Company’s Registration Statement on Form F 1 (File No. 333-259593) filed with the SEC on October 4, 2021). |
| ● | 2021 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.2 to Amendment No. 1 to the Company’s Registration Statement on Form F 1 (File No. 333-259593) filed with the SEC on October 4, 2021). |
| ● | Form of Non-Employee Director Restricted Stock Unit Award Agreement (incorporated by reference to Exhibit 99.3 to the Company’s Registration Statement on Form S-8 (File 333-260317) filed with the SEC on October 18, 2021). |
| ● | Amended and Restated Revolving Credit Agreement, dated as of June 2, 2021, among IHS Holding Limited, as borrower, Citibank, N.A., London Branch as global coordinator, Citibank, N.A., London Branch, Absa Bank Limited (acting through its Corporate and Investment Banking division), Goldman Sachs Lending Partners LLC, JPMorgan Chase Bank, N.A., London Branch and Standard Chartered Bank Dubai International Financial Centre Branch, regulated by the Dubai Financial Services Authority, as mandated lead arrangers, Citibank Europe Plc, UK Branch, as facility agent, and the financial institutions listed therein as the original lenders (incorporated by reference to Exhibit 10.3 to Amendment No. 1 to the Company’s Registration Statement on Form F 1 (File No. 333-259593) filed with the SEC on October 4, 2021). |
| ● | Amendment Letter to Amended and Restated Revolving Credit Agreement, dated as of September 29, 2021, among IHS Holding Limited, as borrower, Citibank, N.A., London Branch as global coordinator, Citibank, N.A., |
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| London Branch, Absa Bank Limited (acting through its Corporate and Investment Banking division), Goldman Sachs Lending Partners LLC, JPMorgan Chase Bank, N.A., London Branch and Standard Chartered Bank Dubai International Financial Centre Branch, regulated by the Dubai Financial Services Authority, as mandated lead arrangers, Citibank Europe Plc, UK Branch, as facility agent, and the financial institutions listed therein as the original lenders (incorporated by reference to Exhibit 10.4 to Amendment No. 1 to the Company’s Registration Statement on Form F 1 (File No. 333-259593) filed with the SEC on October 4, 2021). |
| ● | Amendment Letter dated September 14, 2022, between IHS Holding Limited and Citibank Europe PLC, UK Branch as facility agent (for and on behalf of the original lenders), in relation to the Amended and Restated Revolving Credit Agreement dated June 2, 2021 (incorporated by reference to Exhibit 99.3 to Form 6-K (File No. 001-40876) furnished to the SEC on November 15, 2022 (second Form 6-K)). |
| ● | Amendment and Restatement Agreement dated November 6, 2023 between IHS Holding Limited and Citibank Europe PLC, UK Branch as facility agent (for and on behalf of the original lenders), in relation to the Amended and Restated Revolving Credit Agreement dated June 2, 2021 (incorporated by reference to Exhibit 99.2 to Form 6-K (File No. 001-40876) furnished to the SEC on November 14, 2023 (second Form 6-K)). |
| ● | Bridge Facility Agreement, dated August 10, 2021, among IHS Holding Limited, Goldman Sachs Lending Partners LLC, JPMorgan Chase Bank, N.A., London Branch and Standard Chartered Bank, as mandated lead arrangers, Standard Chartered Bank, as facility agent, and the financial institutions listed therein as the original lenders (incorporated by reference to Exhibit 10.5 to the Company’s Registration Statement on Form F 1 (File No. 333-259593) filed with the SEC on September 16, 2021). |
| ● | Amendment Letter to Bridge Facility Agreement, dated September 29, 2021, among IHS Holding Limited, Goldman Sachs Lending Partners LLC, JPMorgan Chase Bank, N.A., London Branch and Standard Chartered Bank, as mandated lead arrangers, Standard Chartered Bank, as facility agent, and the financial institutions listed therein as the original lenders (incorporated by reference to Exhibit 10.6 to Amendment No. 1 to the Company’s Registration Statement on Form F 1 (File No. 333-259593) filed with the SEC on October 4, 2021). |
| ● | Extension Request Notice and Amendment Letter, dated May 26, 2022, to Bridge Facility Agreement dated 10 August 2021 (incorporated by reference to Exhibit 99.2 to Form 6-K (File No. 001-40876) furnished to the SEC on August 16, 2022 (second Form 6-K). |
| ● | Amendment and Restatement Credit Agreement, dated September 29, 2021, among IHS Netherlands Holdco B.V. as holdco and guarantor, and, IHS Nigeria, IHS Towers NG Limited and INT Towers as borrowers and guarantors, each of IHS Holding Limited, IHS Netherlands NG1 B.V., IHS Nigeria, IHS Netherlands NG2 B.V., IHS Towers NG Limited, Nigeria Tower Interco B.V. and INT Towers as guarantors, Absa Bank Limited (acting through its Corporate and Investment Banking division), Citibank, N.A., London Branch, Goldman Sachs Bank USA, J.P. Morgan Securities plc, FirstRand Bank Limited (London Branch) (acting through its Merchant Bank division) and Standard Chartered Bank, as mandated lead arrangers, Ecobank Nigeria Limited as agent and the financial institutions listed therein as the original lenders (incorporated by reference to Exhibit 10.7 to Amendment No. 1 to the Company’s Registration Statement on Form F 1 (File No. 333-259593) filed with the SEC on October 4, 2021). |
| ● | Waiver Letter, dated September 6, 2022, between IHS Netherlands Holdco B.V. and Ecobank Nigeria Limited as facility agent (for and on behalf of the original lenders), in relation to the Amendment and Restated Credit Agreement dated September 29, 2021 (incorporated by reference to Exhibit 99.2 to Form 6-K (File No. 001-40876) furnished to the SEC on November 15, 2022 (second Form 6-K). |
| ● | Term Loan Facility Agreement, dated October 28, 2022, among IHS Holding Limited, as borrower, Absa Bank Limited (acting through its Corporate and Investment Banking division), Citibank N.A. London Branch, FirstRand Bank Limited (London Bank) acting through its Rand Merchant Bank division, and Standard Chartered Bank, as bookrunner initial mandated lead arrangers, Citibank Europe plc, UK Branch, as facility agent, and the financial institutions listed therein as the original lenders (incorporated by reference to Exhibit 99.4 to Form 6-K (File No. 001-40876) furnished to the SEC on November 15, 2022 (second Form 6-K). |
| ● | Amendment Letter dated October 2, 2023 between IHS Holding Limited and Citibank Europe PLC, UK Branch as facility agent (for and on behalf of the original lenders), in relation to the Term Loan Facility Agreement dated October 28, 2022 (incorporated by reference to Exhibit 99.3 to Form 6-K (File No. 001-40876) furnished to the SEC on November 14, 2023 (second Form 6-K)). |
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| ● | Amendment Letter dated February 5, 2024 between IHS Holding Limited and Citibank Europe PLC, UK Branch as facility agent (for and on behalf of the original lenders), in relation to the Term Loan Facility Agreement dated October 28, 2022 (filed as Exhibit 4.12 to this Annual Report on Form 20-F). |
| ● | Term Loan Facility Agreement, dated January 3, 2023 among IHS Netherlands Holdco B.V. as holdco and guarantor, IHS (Nigeria) Limited, IHS Towers NG Limited, INT Towers Limited as borrowers and guarantors, each of IHS Holding Limited, IHS Netherlands NG1 B.V., IHS Nigeria, IHS Netherlands NG2 B.V., IHS Towers NG Limited, Nigeria Tower Interco B.V. and INT Towers as guarantors, Access Bank Plc, Ecobank Nigeria Limited, Rand Merchant Bank Nigeria Limited and United Bank for Africa Plc as mandated lead arrangers, Ecobank Nigeria Limited as facility agent, and the financial institutions listed therein as the lenders (incorporated by reference to Exhibit 4.8 to Form 20-F (File No. 001-40876) filed with the SEC on March 28, 2023). |
| ● | Amendment Letter dated February 15, 2024 between IHS Netherlands Holdco B.V. and Ecobank Nigeria Limited as facility agent (for and on behalf of the original lenders), in relation to the Term Loan Facility Agreement dated January 3, 2023 (filed as Exhibit 4.13 to this Annual Report on Form 20-F). |
| ● | Revolving Credit Agreement, dated January 3, 2023 among IHS Netherlands Holdco B.V. as holdco and guarantor, IHS (Nigeria) Limited, IHS Towers NG Limited, INT Towers Limited as borrowers and guarantors, each of IHS Holding Limited, IHS Netherlands NG1 B.V., IHS Nigeria, IHS Netherlands NG2 B.V., IHS Towers NG Limited, Nigeria Tower Interco B.V. and INT Towers as guarantors, Access Bank Plc, Ecobank Nigeria Limited, Rand Merchant Bank Nigeria Limited and United Bank for Africa Plc as mandated lead arrangers, Ecobank Nigeria Limited as facility agent, and the financial institutions listed therein as the lenders (incorporated by reference to Exhibit 4.9 to Form 20-F (File No. 001-40876) filed with the SEC on March 28, 2023). |
| ● | Amendment Letter dated February 15, 2024 between IHS Netherlands Holdco B.V. and Ecobank Nigeria Limited as facility agent (for and on behalf of the original lenders), in relation to the Revolving Credit Agreement dated January 3, 2023 (filed as Exhibit 4.14 to this Annual Report on Form 20-F). |
| ● | Term Loan Facility Agreement, dated March 8, 2024, between, among others, IHS Holding Limited as borrower, Standard Chartered Bank as arranger, and Standard Chartered Bank (Singapore) Limited as the original lender (filed as Exhibit 4.15 to this Annual Report on Form 20-F). |
| ● | Supplemental Indenture, dated as of June 17, 2021, among IHS Netherlands Holdco B.V., as issuer, IHS Holding Limited, IHS Netherlands NG1 B.V., IHS Netherlands NG2 B.V., IHS Nigeria Limited, IHS Towers NG Limited, Nigeria Tower Interco B.V., INT Towers Limited, as guarantors, and Citibank N.A. London Branch, as Trustee, Principal Paying Agent, Transfer Agent and Registrar (incorporated by reference to Exhibit 4.5 to Amendment No. 1 to the Company’s Registration Statement on Form F 1 (File No. 333-259593) filed with the SEC on October 4, 2021). |
| ● | Indenture, dated as of November 29, 2021, among IHS Holding Limited., as issuer, IHS Netherlands Holdco B.V., IHS Netherlands NG1 B.V., IHS Netherlands NG2 B.V., IHS Nigeria Limited, IHS Towers NG Limited, INT Towers Limited, Nigeria Tower Interco B.V., as guarantors, Lucid Trustee Services Limited, as Trustee, and Citibank N.A. London Branch, as Principal Paying Agent, Transfer Agent and Registrar (incorporated by reference to Exhibit 2.6 to the Company’s Annual Report on Form 20-F/A (File No. 001-40876) filed with the SEC on August 16, 2022). |
D. Exchange Controls
There are no Cayman Islands exchange control regulations that would affect the import or export of capital or the remittance of dividends, interest or other payments to non-resident holders of our shares.
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E. Taxation
The following summary contains a description of certain Cayman Islands, United Kingdom and U.S. federal income tax consequences of the ownership and disposition of ordinary shares, but it does not purport to be a comprehensive description of all the tax considerations that may be relevant to the ownership of ordinary shares. The summary is based upon the tax laws of the Cayman Islands and regulations thereunder, the tax laws of the United Kingdom and regulations thereunder and on the tax laws of the United States and regulations thereunder as of the date hereof, which are subject to change.
Material Cayman Islands Tax Considerations
The following discussion is a summary of the material Cayman Islands tax considerations relating to the purchase, ownership and disposition of our ordinary shares. There is, at present, no direct taxation in the Cayman Islands and interest, dividends and gains payable to the Company will be received free of all Cayman Islands taxes. The Company received an undertaking from the Government of the Cayman Islands to the effect that, for a period of thirty years from the date of the undertaking, no law that thereafter is enacted in the Cayman Islands imposing any tax to be levied on profits, income or on gains or appreciation shall apply to the Company or its operations, and in addition that no tax to be levied on profits, income gains or appreciations, or which is in the nature of estate duty or inheritance tax shall be payable (i) on or in respect of the shares, debentures or other obligation of the Company; or (ii) by way of the withholding in whole or in part of any relevant payment as defined under the Cayman Islands Tax Concessions Act.
No stamp duty in the Cayman Islands is payable in respect of the issue of any ordinary shares or an instrument of transfer in respect of an ordinary share.
Material UK Tax Considerations
The following statements are of a general nature and do not purport to be a complete analysis of all potential UK tax consequences of acquiring, holding and disposing of ordinary shares. The statements are based on current UK tax law and on the current published practice of His Majesty’s Revenue and Customs, or HMRC (which may not be binding on HMRC), as of the date of this Annual Report, all of which are subject to change, possibly with retrospective effect. They are intended to address only certain UK tax consequences for holders of ordinary shares who are tax resident in (and only in) the United Kingdom, and in the case of individuals, domiciled in (and only in) the United Kingdom (except where expressly stated otherwise) who are the absolute beneficial owners of ordinary shares and any dividends paid on them and who hold ordinary shares as investments (other than in an individual savings account or a self-invested personal pension). They do not address the UK tax consequences which may be relevant to certain classes of holders of ordinary shares such as traders, brokers, dealers, banks, financial institutions, insurance companies, investment companies, collective investment schemes, tax-exempt organizations, trustees, persons connected with the Company or any member of the IHS Towers group for tax purposes, persons holding their ordinary shares as part of hedging or conversion transactions, holders of ordinary shares who have (or are deemed to have) acquired their ordinary shares by virtue of an office or employment, and holders of ordinary shares who are or have been officers or employees of the Company or a company forming part of the IHS Towers group for tax purposes. The statements do not apply to any holders of ordinary shares who either directly or indirectly hold or control 10% or more of the Company’s share capital (or class thereof), voting power or profits.
The following is intended only as a general guide and is not intended to be, nor should it be considered to be, legal or tax advice to any particular prospective subscriber for, or purchaser of, ordinary shares. Accordingly, prospective subscribers for, or purchasers of, ordinary shares who are in any doubt as to their tax position regarding the acquisition, ownership and disposition of ordinary shares or who are subject to tax in a jurisdiction other than the United Kingdom should consult their own tax advisers.
The Company
It is the intention of the directors to conduct the affairs of the Company so that the central management and control of the Company is exercised in the United Kingdom. As a result, the Company is expected to be treated as resident in the United Kingdom for UK tax purposes. Accordingly we expect to be subject to UK taxation on our worldwide income and gains, except where an exemption or relief applies.
We may be treated as a dual resident company for UK tax purposes. As a result, our right to claim certain reliefs from UK tax may be restricted, and changes in law or practice in the United Kingdom could result in the imposition of further restrictions on our right to claim UK tax reliefs.
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Taxation of Dividends — Withholding tax
The Company will not be required to withhold UK tax at source when paying dividends. The amount of any liability to UK tax on dividends paid by the Company will depend on the individual circumstances of a Shareholder.
Taxation of Dividends — UK Resident Shareholders
An individual holder of ordinary shares who is resident for tax purposes in the UK may, depending on his or her particular circumstances, be subject to UK tax on dividends received from the Company.
All dividends received by a UK resident individual holder of ordinary shares from the Company or from other sources will form part of such holder’s total income for income tax purposes and will constitute the top slice of that income. A nil rate of income tax will apply to the first £1,000 (tax year 2023/24, expected to reduce to £500 from April 6, 2024) of taxable dividend income received by the holder of ordinary shares in a tax year. Income within the nil rate band will be taken into account in determining whether income in excess of the nil rate band falls within the basic rate, higher rate or additional rate tax bands. Where the dividend income is above the nil rate band, any excess amount will be taxed at 8.75%. (tax year 2023/24) to the extent that the excess amount falls within the basic rate tax band, 33.75%. (tax year 2023/24) to the extent that the excess amount falls within the higher rate tax band and 39.35%. (tax year 2023/24) to the extent that the excess amount falls within the additional rate tax band.
Corporate holders of ordinary shares which are resident for tax purposes in the UK should not be subject to UK corporation tax on any dividend received from the Company so long as the dividends qualify for exemption (as is likely) and certain conditions are met (including anti-avoidance conditions). By way of example, dividends paid on shares that are not redeemable and do not carry any present or future preferential rights to dividends or to the Company’s assets on its winding up will generally be exempt.
Taxation of Dividends — Non-UK Resident Shareholders
An individual holder of ordinary shares who is not resident for tax purposes in the United Kingdom should not be chargeable to UK income tax on dividends received from the Company unless he or she carries on (whether solely or in partnership) any trade, profession or vocation in the United Kingdom through a branch or agency to which the ordinary shares are attributable. There are certain exceptions for trading in the United Kingdom through independent agents, such as some brokers and investment managers.
Corporate holders of ordinary shares who are not resident in the United Kingdom will not generally be subject to UK corporation tax on dividends unless they are carrying on a trade, profession or vocation in the United Kingdom through a permanent establishment in connection with which their ordinary shares are used, held, or acquired.
Taxation of Capital Gains — UK Resident Shareholders
A disposal or deemed disposal of ordinary shares by an individual or corporate holder of such ordinary shares who is tax resident in the United Kingdom may, depending on that holder’s circumstances and subject to any available exemptions or reliefs, give rise to a chargeable gain or allowable loss for the purposes of UK taxation of chargeable gains.
Any chargeable gain (or allowable loss) will generally be calculated by reference to the consideration received for the disposal of ordinary shares less the allowable cost to that holder of acquiring such ordinary shares.
The applicable tax rates for UK resident individual holders of ordinary shares realizing a gain on the disposal of ordinary shares is, broadly, 10% for basic rate taxpayers (tax year 2023/24) and 20% for higher and additional rate taxpayers (tax year 2023/24).
For UK resident corporate holders of ordinary shares, corporation tax is generally charged on chargeable gains at the rate applicable to the relevant corporate holder. The main rate of UK corporation tax is currently 25.
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Taxation of Capital Gains — Non-UK Shareholders
Holders of ordinary shares who are not resident in the United Kingdom and, in the case of an individual holder of ordinary shares, not temporarily non-resident, should not be liable for UK tax on capital gains realized on a sale or other disposal of ordinary shares unless (i) such ordinary shares are used, held or acquired for the purposes of a trade, profession or vocation carried on in the United Kingdom through a branch or agency or, in the case of a corporate holder of ordinary shares, through a permanent establishment or (ii) where certain conditions are met, the Company derives 75% or more of its gross value from UK land.
Generally, an individual holder of ordinary shares who has ceased to be resident in the United Kingdom for tax purposes for a period of five years or less and who disposes of ordinary shares during that period may be liable on their return to the United Kingdom to UK taxation on any capital gain realized (subject to any available exemption or relief).
UK Stamp Duty and UK Stamp Duty Reserve Tax
The statements below are intended as a general guide to the current position relating to UK Stamp Duty and UK Stamp Duty Reserve Tax and apply to any holders of our ordinary shares irrespective of their place of tax residence.
No UK Stamp Duty, or UK Stamp Duty Reserve Tax, or SDRT, will be payable on the issue of ordinary shares, subject to the comments below.
UK Stamp Duty will in principle be payable on any instrument of transfer of ordinary shares that is executed in the United Kingdom or that relates to any property situated, or to any matter or thing done or to be done, in the United Kingdom. An exemption from UK Stamp Duty is available on an instrument transferring ordinary shares where the amount or value of the consideration is £1,000 or less and it is certified on the instrument that the transaction effected by the instrument does not form part of a larger transaction or series of transactions in respect of which the aggregate amount or value of the consideration exceeds £1,000. Holders of ordinary shares should be aware that, even where an instrument of transfer is in principle subject to UK Stamp Duty, UK Stamp Duty is not required to be paid unless it is necessary to rely on the instrument for legal purposes, for example to register a change of ownership or in litigation in a UK court.
Provided that ordinary shares are not registered in any register maintained in the United Kingdom by or on behalf of us and are not paired with any shares issued by a UK incorporated company, any agreement to transfer ordinary shares will not be subject to SDRT. We currently do not intend that any register of ordinary shares will be maintained in the United Kingdom.
If ordinary shares were to be registered in a register maintained in the United Kingdom by or on behalf of us or paired with any shares issued by a UK incorporated company then the ordinary shares would be treated as chargeable securities for SDRT purposes and subject to certain exemptions, where such ordinary shares are transferred or issued to, or to a nominee or agent for, a person whose business is or includes the provision of clearance services or issuing depositary receipts (but not including CREST), SDRT may be payable at a rate of 1.5% of the amount or value of the consideration payable for or, in certain circumstances, the market value of the ordinary shares. Were such a liability for SDRT to arise, it would strictly be accountable by the clearance service or depositary receipt system, as the case may be, but will, in practice, generally be reimbursed by participants in the clearance service or depositary receipt system.
Material United States Federal Income Taxation Considerations
The following discussion describes material U.S. federal income tax consequences to U.S. Holders (as defined below) of the ownership and disposition of ordinary shares. This summary applies only to U.S. Holders that hold ordinary shares as capital assets within the meaning of Section 1221 of the Code (as defined below) and have the U.S. dollar as their functional currency.
This discussion is based on the tax laws of the United States as in effect on the date of this Annual Report, including the Internal Revenue Code of 1986, as amended, or the Code, and U.S. Treasury regulations in effect or, in some cases, proposed, as of the date of this Annual Report, as well as judicial and administrative interpretations thereof available on or before such date. All of the foregoing authorities are subject to change, and any such change could apply retroactively and could affect the U.S. federal income tax consequences described below. The statements in this Annual Report are not binding on the U.S. Internal Revenue Service, or the IRS, or any court, and thus we can provide no assurance that the U.S. federal income tax consequences discussed below will not be challenged by the IRS or will be sustained by a court if challenged by the IRS. Furthermore, this summary does not address any estate or gift tax consequences, any state, local or non-U.S.
141
tax consequences, the Medicare tax on net investment income or any other tax consequences other than U.S. federal income tax consequences.
The following discussion does not describe all the tax consequences that may be relevant to any particular holder of our ordinary shares or to persons in special tax situations such as:
| ● | banks and certain other financial institutions; |
| ● | regulated investment companies; |
| ● | real estate investment trusts; |
| ● | insurance companies; |
| ● | broker-dealers; |
| ● | traders that elect to mark to market; |
| ● | tax-exempt entities; |
| ● | persons liable for alternative minimum tax; |
| ● | U.S. expatriates; |
| ● | persons holding ordinary shares as part of a straddle, hedging, constructive sale, conversion or integrated transaction; |
| ● | persons that actually or constructively own 10% or more of the Company’s stock (by vote or value); |
| ● | persons that are resident or ordinarily resident in or have a permanent establishment in a jurisdiction outside the United States; |
| ● | persons who acquired ordinary shares pursuant to the exercise of any employee share option or otherwise as compensation; |
| ● | persons subject to special tax accounting rules as a result of any item of gross income with respect to the ordinary shares being taken into account in an applicable financial statement; or |
| ● | persons holding ordinary shares through partnerships or other pass-through entities. |
HOLDERS OF OUR ORDINARY SHARES ARE URGED TO CONSULT THEIR TAX ADVISORS ABOUT THE APPLICATION OF THE U.S. FEDERAL TAX RULES TO THEIR PARTICULAR CIRCUMSTANCES AS WELL AS THE STATE, LOCAL AND NON-U.S. TAX CONSEQUENCES TO THEM OF THE OWNERSHIP AND DISPOSITION OF ORDINARY SHARES.
As used herein, the term “U.S. Holder” means a beneficial owner of ordinary shares that, for U.S. federal income tax purposes, is or is treated as:
| ● | an individual who is a citizen or resident of the United States; |
| ● | a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia; |
| ● | an estate whose income is subject to U.S. federal income taxation regardless of its source; or |
| ● | a trust that (1) is subject to the supervision of a court within the United States and the control of one or more U.S. persons or (2) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person. |
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The tax treatment of a partner in an entity or arrangement treated as a partnership for U.S. federal income tax purposes that holds ordinary shares generally will depend on such partner’s status and the activities of the partnership. A U.S. Holder that is a partner in such partnership should consult its tax advisor.
Dividends and Other Distributions on Ordinary Shares
Subject to the passive foreign investment company considerations discussed below, the gross amount of distributions made by the Company with respect to ordinary shares (including the amount of any non-U.S. taxes withheld therefrom, if any) generally will be includible as dividend income in a U.S. Holder’s gross income in the year received, to the extent such distributions are paid out of the Company’s current or accumulated earnings and profits, as determined under U.S. federal income tax principles. Because the Company does not maintain calculations of its earnings and profits under U.S. federal income tax principles and does not expect to do so in the future, a U.S. Holder should expect all cash distributions will be reported as dividends for U.S. federal income tax purposes. Such dividends will not be eligible for the dividends-received deduction allowed to U.S. corporations with respect to dividends received from other U.S. corporations. Dividends paid to a non-corporate U.S. Holder may be treated as “qualified dividend income” eligible for the lower capital gains tax rate with respect to non-corporate U.S. Holders. The dividends will not be eligible for the dividends received deduction available to corporations in respect of dividends received from other U.S. corporations.
The amount of any distribution paid in foreign currency will be equal to the U.S. dollar value of such currency, translated at the spot rate of exchange on the date such distribution is received, regardless of whether the payment is in fact converted into U.S. dollars at that time. Any gain or loss realized on a subsequent conversion or other disposition of such foreign currency will be treated as U.S. source ordinary income or loss.
Dividends on the ordinary shares generally will constitute foreign source income for foreign tax credit limitation purposes. Subject to certain complex conditions and limitations, any foreign taxes withheld on any distributions on the ordinary shares may be eligible for credit against a U.S. Holder’s federal income tax liability. For foreign tax credit purposes, dividends distributed by the Company with respect to ordinary shares will generally constitute “passive category income.”
Sale or Other Taxable Disposition of Ordinary Shares
Subject to the passive foreign investment company considerations discussed below, upon a sale or other taxable disposition of ordinary shares, a U.S. Holder will recognize capital gain or loss in an amount equal to the difference between the amount realized and the U.S. Holder’s adjusted tax basis in such ordinary shares. Any such gain or loss generally will be treated as long-term capital gain or loss if the U.S. Holder’s holding period in the ordinary shares exceeds one year.
Non-corporate U.S. Holders (including individuals) generally will be subject to U.S. federal income tax on long-term capital gain at preferential rates. The deductibility of capital losses is subject to significant limitations. Gain or loss, if any, realized by a U.S. Holder on the sale or other disposition of ordinary shares generally will be treated as U.S. source gain or loss for U.S. foreign tax credit limitation purposes.
Passive Foreign Investment Company Considerations
The Company will be classified as a passive foreign investment company, or a PFIC, for any taxable year if either: (a) at least 75% of its gross income is “passive income” for purposes of the PFIC rules or (b) at least 50% of the value of its assets (determined on the basis of a quarterly average) is attributable to assets that produce or are held for the production of passive income. For this purpose, the Company will be treated as owning its proportionate share of the assets and earning its proportionate share of the income of any other corporation in which it owns, directly or indirectly, 25% or more (by value) of the stock.
Under the PFIC rules, if the Company were considered a PFIC at any time that a U.S. Holder holds the ordinary shares, the Company would continue to be treated as a PFIC with respect to such investment unless (i) the Company ceased to be a PFIC and (ii) the U.S. Holder made a “deemed sale” election under the PFIC rules.
Based on the composition of the income, assets and operations of the Company and its subsidiaries, the Company does not believe that it currently is or has been a PFIC for the year ending December 31, 2022, and the Company does not expect to be a PFIC in the future. This is a factual determination, however, that can only be made annually after the close of each taxable year. In addition, the principles and methodology used in determining whether a company is a PFIC are subject to ambiguities and different interpretations. Therefore we cannot assure you that the Company will not be classified as a PFIC for the current taxable year.
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Furthermore, even if the Company is not a PFIC for the current year, the Company may become a PFIC in a future year depending on, for example, the operations of the Company and its subsidiaries.
If the Company is considered a PFIC at any time that a U.S. Holder holds ordinary shares, any gain recognized by the U.S. Holder on a sale or other disposition of the ordinary shares, as well as the amount of any “excess distribution” (defined below) received by the U.S. Holder, would be allocated ratably over the U.S. Holder’s holding period for the ordinary shares. The amounts allocated to the taxable year of the sale or other disposition (or the taxable year of receipt, in the case of an excess distribution) and to any year before the Company became a PFIC would be taxed as ordinary income. The amount allocated to each other taxable year would be subject to tax at the highest rate in effect for individuals or corporations, as appropriate, for that taxable year, and an interest charge would be imposed. For the purposes of these rules, an excess distribution is the amount by which any distribution received by a U.S. Holder on ordinary shares exceeds 125% of the average of the annual distributions on the ordinary shares received during the preceding three years or the U.S. Holder’s holding period, whichever is shorter. In addition, if the Company is a PFIC and any of its subsidiaries is also a PFIC, a U.S. Holder may also be subject to the adverse tax consequences described above with respect to any gain or “excess distribution” realized or deemed realized in respect of such subsidiary PFIC. Certain elections may be available that would result in alternative treatments (such as mark-to-market treatment) of the ordinary shares if the Company is considered a PFIC.
If the Company is considered a PFIC, a U.S. Holder will also be subject to annual information reporting requirements. U.S. Holders should consult their tax advisors about the potential application of the PFIC rules to the ordinary shares.
Information Reporting and Backup Withholding
Dividend payments with respect to ordinary shares and proceeds from the sale, exchange or redemption of ordinary shares may be subject to information reporting to the IRS and U.S. backup withholding. A U.S. Holder may be eligible for an exemption from backup withholding if the U.S. Holder furnishes a correct taxpayer identification number and makes any other required certification or is otherwise exempt from backup withholding. U.S. Holders who are required to establish their exempt status may be required to provide such certification on IRS Form W-9. U.S. Holders should consult their tax advisors regarding the application of the U.S. information reporting and backup withholding rules.
Backup withholding is not an additional tax. Amounts withheld as backup withholding may be credited against a U.S. Holder’s U.S. federal income tax liability, and such U.S. Holder may obtain a refund of any excess amounts withheld under the backup withholding rules by timely filing an appropriate claim for refund with the IRS and furnishing any required information.
Additional Information Reporting Requirements
Certain U.S. Holders who are individuals (and certain entities) that hold an interest in “specified foreign financial assets” (which may include the ordinary shares) are required to report information relating to such assets, subject to certain exceptions (including an exception for ordinary shares held in accounts maintained by certain financial institutions). Penalties can apply if U.S. Holders fail to satisfy such reporting requirements. U.S. Holders should consult their tax advisors regarding the applicability of these requirements to their acquisition and ownership of ordinary shares.
THE DISCUSSION ABOVE IS A GENERAL SUMMARY. IT DOES NOT COVER ALL TAX MATTERS THAT MAY BE IMPORTANT TO YOU. EACH HOLDER OF ORDINARY SHARES SHOULD CONSULT ITS OWN TAX ADVISOR ABOUT THE TAX CONSEQUENCES OF OWNING ORDINARY SHARES UNDER THE HOLDER’S OWN CIRCUMSTANCES.
F. Dividends and Paying Agents
Not applicable.
G. Statement by Experts
Not applicable.
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H. Documents on Display
We are subject to the informational requirements of the Exchange Act. Accordingly, we will be required to file reports and other information with the SEC, including annual reports on Form 20-F and reports on Form 6-K. As a foreign private issuer, we are exempt under the Exchange Act from, among other things, the rules prescribing the furnishing and content of proxy statements, and our officers, directors and principal shareholders are exempt from the reporting and short swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we will not be required under the Exchange Act to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act. We are required to make certain filings with the SEC. The SEC maintains an internet website that contains reports and other information about issuers, like us, that file electronically with the SEC. The address of that website is www.sec.gov.
I. Subsidiary Information
Not applicable.
J. Annual Report to Securities Holders
Not applicable.
Item 11. Quantitative and Qualitative Disclosures About Market Risk
Our consolidated financial statements are prepared in conformity with IFRS, as issued by the IASB. Our introduction and overview of Group’s risk management are described in note 4 to our audited consolidated financial statements, which are included elsewhere in this Annual Report.
Item 12. Description of Securities Other than Equity Securities
A. Debt Securities
Not applicable.
B. Warrants and Rights
Not applicable.
C. Other Securities
Not applicable.
D. American Depositary Shares
Not applicable.
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PART II
Item 13. Defaults, Dividend Arrearages and Delinquencies
None.
Item 14. Material Modifications to the Rights of Security Holders and Use of Proceeds
On October 13, 2021, we adopted our amended and restated memorandum and articles of association according to our board of directors’ proposal. As a consequence of the adoption of the amended and restated memorandum and articles of association, our share capital was reorganized, and all of our outstanding Class A and Class B shares were exchanged on a 500 to 1 basis for ordinary shares.
A copy of our amended and restated memorandum and articles of association is filed as Exhibit 1.1 to this Annual Report. See Item 10.B. “Additional Information—Memorandum and Articles of Association.”
Item 15. Controls and Procedures
Limitations on Effectiveness of Disclosure Controls and Procedures
We maintain disclosure controls and procedures (as that term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (“Exchange Act”)) that are designed to ensure that information required to be disclosed in the Company’s reports under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosures. Any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives.
Evaluation of Disclosure Controls and Procedures
Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of the design and operation of our disclosure controls and procedures as of December 31, 2023. Based upon that evaluation and as a result of the material weakness in our internal control over financial reporting described below, our Chief Executive Officer and Chief Financial Officer concluded that, as of December 31, 2023, our disclosure controls and procedures were not effective to accomplish their objectives at the reasonable assurance level.
In light of this fact, our management has performed additional analyses, reconciliations, and other post-closing procedures and has concluded that, notwithstanding the material weakness in our internal control over financial reporting, the consolidated financial statements for the periods covered by and included in this Annual Report on Form 20-F fairly state, in all material respects, our financial position, results of operations and cash flows for the periods presented in conformity with IFRS.
Management’s Annual Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Rule 13a-15(f) and 15d-15(f) under the Exchange Act. Internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In conducting its evaluation of the effectiveness of our internal control over financial reporting, our management, including our principal executive officer and principal financial officer, used the criteria established in Internal Control – Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) 2013.
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Based upon that evaluation and as a result of the material weakness described below, our management, including our Chief Executive Officer and Chief Financial Officer, concluded that, as of December 31, 2023, our internal control over financial reporting was not effective.
A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of a company’s annual or interim financial statements will not be prevented or detected on a timely basis. Internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with IFRS.
In connection with the audits of our historical consolidated financial statements, we identified a material weakness in internal control over financial reporting as of December 31, 2023. This material weakness, which is set out below, was previously reported in our annual report on Form 20-F for the year ended December 31, 2022:
| ● | Lack of key accounting personnel with the requisite knowledge and experience to account for complex transactions, particularly in the areas of foreign exchange, business combinations and other complex, judgmental areas, such as goodwill impairment assessment. |
Our independent registered public accounting firm, PricewaterhouseCoopers LLP, has audited the effectiveness of the Company’s internal control over financial reporting as of December 31, 2023, as stated in their report which appears herein under Item 18. “Financial Statements.
Management’s Remediation Activities
Through remediation work undertaken in the year ended December 31, 2023 and testing of design and operating effectiveness of controls, we have concluded that the following previously identified material weaknesses have been remediated as of December 31, 2023:
| ● | Lack of an adequate process and procedures surrounding the accounting for the acquisition of property, plant and equipment and utilization of advance payments made to contractors for the provision and construction of property, plant and equipment impacting the timely recognition of assets and commencement of depreciation. |
| ● | Lack of appropriate internal communication, documentation of the facts, circumstances and judgements taken by management, resulting in the incomplete recording of transactions related to the recognition and settlement of revenues and receivables where the amounts concerned were subject to dispute or deferred invoicing. |
We designed and implemented measures to improve our internal control over financial reporting through the following remediation activities made by management related to the material weaknesses described above, that were previously identified and which have been remediated as of December 31, 2023:
| ● | Implemented enhanced review and communication procedures of timely and complete capitalization of assets, including consideration of advance payments and capital work-in-progress. |
| ● | Implemented enhanced reconciliation and review procedures of the fixed asset register, including the completeness and accuracy of replacement items capitalization. |
| ● | Implemented enhanced review procedures of the facts, circumstances and judgements taken by management related to the recognition of revenues and receivables, including enhanced documentation of estimates and the related calculations as well as inputs. |
| ● | Implemented enhanced review and communication procedures of current disputes with customers, including enhanced documentation of disputed amounts. |
During the fiscal year ended December 31, 2023, management completed the design, implementation and testing of the newly designed and enhanced controls and determined that, as of December 31, 2023, these controls were appropriately designed and operated effectively for a sufficient period of time to conclude the material weaknesses have been remediated.
We continue to take steps to remediate the remaining material weakness and have hired additional qualified accounting and financial reporting personnel and engaged external temporary resources as needed. In addition, we monitored the operation of controls to prevent the future occurrence of similar issues.
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We have modified and implemented policies and procedures centrally to develop effective internal control through a shared service center along with improvements to controls across the finance function.
While we believe these efforts can remediate the remaining material weakness, this material weakness cannot be considered fully remediated until the applicable remedial controls operate for a sufficient period of time and management has concluded, through testing, that these controls are operating effectively.
Attestation Report of Independent Registered Public Accounting Firm
Our independent registered public accounting firm, PricewaterhouseCoopers LLP, has audited the effectiveness of the Company’s internal control over financial reporting as of December 31, 2023, as stated in their report which appears herein under Item 18. “Financial Statements”.
Changes in Internal Control over Financial Reporting
Other than as set forth above, there were no changes in our internal controls over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that occurred during the period covered by this Annual Report that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 16. Reserved
Item 16A. Audit Committee Financial Expert
Our Board has determined that Nicholas Land, Ursula Burns and Aniko Szigetvari each satisfy the “independence” requirements set forth in Rule 10A-3 under the Exchange Act. Our board of directors has also determined that Nicholas Land is considered an “audit committee financial expert” as defined in Item 16A of Form 20-F under the Exchange Act.
Item 16B. Code of Ethics
We have adopted a Code of Conduct and Business Principles, which covers a broad range of matters including the handling of conflicts of interest, record-keeping, whistle-blowing, compliance issues and other corporate policies such as equal opportunity and non-discrimination standards. This Code of Conduct and Business Principles applies to all of our executive officers, directors and employees, including our principal executive, principal financial and principal accounting officers. Our Code of Conduct and Business Principles is intended to meet the definition of “code of ethics” under Item 16B of 20-F under the Exchange Act.
We will disclose on our website any amendment to, or waiver from, a provision of our Code of Conduct and Business Principles that applies to our directors or executive officers to the extent required under the rules of the SEC or NYSE.
Our Code of Conduct and Business Principles is available on the Investor Relations page of our website at ihstowers.com/investors. The information contained on our website is not incorporated by reference in this Annual Report.
Item 16C. Principal Accountant Fees and Services
The consolidated financial statements of IHS Holding Limited at December 31, 2023 and 2022, and for each of the two years in the period ended December 31, 2023, appearing in this Annual Report have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm.
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The table below sets out the total amount billed to us by PricewaterhouseCoopers LLP for services performed in the years ended December 31, 2023 and 2022, and breaks down these amounts by category of service:
|
|
2023 |
|
2022 |
|
|
$’000 |
|
$’000 |
Audit Fees |
|
11,498 |
|
6,672 |
Audit Related Fees |
|
1,236 |
|
1,157 |
All Other Fees |
|
123 |
|
444 |
Total |
|
12,857 |
|
8,273 |
Audit Fees
Audit fees for the years ended December 31, 2023 and 2022 related to the audit of our consolidated and subsidiary financial statements and other audit services provided in connection with statutory and regulatory filings or engagements.
Audit Related Fees
Audit related fees for the years ended December 31, 2023 and 2022 related to interim review services provided in connection with statutory and regulatory filings or engagements.
All Other Fees
All other fees in the years ended December 31, 2023 and 2022 related to services in connection with non-audit compliance and review work.
Pre-Approval Policies and Procedures
The advance approval of the audit committee or members thereof, to whom approval authority has been delegated, is required for all audit and non-audit services provided by our auditors.
All services provided by our auditors are approved in advance by either the audit committee or members thereof, to whom authority has been delegated, in accordance with the audit committee’s pre-approval policy.
Item 16D. Exemptions from the Listing Standards for Audit Committees
Not applicable.
Item 16E. Purchases of Equity Securities by the Issuer and Affiliated Purchasers
In August 2023, the Board authorized a stock repurchase program for up to $50.0 million of the Company’s ordinary shares, effective as of August 15, 2023 through August 15, 2025, subject to market conditions, contractual restrictions, regulatory requirements and other factors.
Repurchases under the program may be made in the open market from time to time, in privately negotiated transactions, through accelerated repurchase agreements or otherwise, with the amount and timing of repurchases depending on and subject to market conditions, alternative uses of capital, corporate needs, applicable regulatory requirements and other factors, at management’s discretion. Open market repurchases are structured to occur within the pricing and volume requirements of Rule 10b-18. The Company may also, from time to time, enter into Rule 10b5-1 plans to facilitate repurchases of its shares under this authorization.
This stock repurchase program does not obligate the Company to repurchase any set dollar amount or number of ordinary shares and may be extended, modified, suspended or terminated at any time without prior notice at the Company’s discretion.
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The table below summarizes the repurchases we made in the periods indicated.
Month |
|
Total number of ordinary shares purchased |
Average price paid per ordinary share* |
Total number of ordinary shares purchased as part of publicly announced plans or programs** ('000) |
Maximum approximate Dollar value of ordinary shares that may yet be purchased under share repurchase program ($'000) |
|||
August 1-31 |
|
- |
- |
- |
50,000 |
|||
September 1-30 |
|
948 |
5.04 |
948 |
45,221 |
|||
October 1-31 |
|
931 |
5.61 |
931 |
40,000 |
|||
November 1-30 |
|
- |
- |
- |
40,000 |
|||
December 1-31 |
|
- |
- |
- |
40,000 |
|||
Total |
|
1,879 |
5.32 |
1,879 |
40,000 |
|||
* Excludes broker fees.
** As described above, in August 2023, the Board authorized a stock repurchase program for up to $50.0 million of the Company’s ordinary shares, effective as of August 15, 2023 through August 15, 2025, subject to market conditions, contractual restrictions, regulatory requirements and other factors.
Item 16F. Change in Registrant’s Certifying Accountant
None.
Item 16G. Corporate Governance
We are a “foreign private issuer” (as such term is defined in Rule 3b-4 under the Exchange Act), and our shares are listed on the NYSE. Under the NYSE rules, NYSE listed companies that are foreign private issuers are permitted to follow home country practice in lieu of the corporate governance provisions specified by the NYSE with limited exceptions.
We believe the following to be the significant differences between our corporate governance practices and those applicable to U.S. companies under the NYSE listing standards.
| ● | The NYSE rules require that the quorum for any meeting of the holders of shares should be sufficiently high to ensure a representative vote and give careful consideration to provisions fixing any proportion less than a majority of the outstanding shares as the quorum for shareholders’ meetings. We follow the corporate governance practice of our home country, the Cayman Islands, which permits less than a majority of the outstanding shares as the quorum for shareholders’ meetings. |
| ● | The NYSE rules also require shareholder approval for equity compensation plans and material revisions to those plans. We follow the corporate governance practice of our home country, the Cayman Islands, which does not require shareholder approval for these matters. |
We may in the future decide to use other foreign private issuer exemptions with respect to some or all of the other NYSE listing requirements. For example, under the NYSE rules, U.S. domestic listed, non-controlled companies are required to have a majority independent board, which is not required under the Companies Act of the Cayman Islands, our home country. NYSE rules also require U.S. domestic listed, non-controlled companies to have a compensation committee and a nominating and corporate governance committee, each composed entirely of independent directors, which are not required under our home country laws.
Following our home country governance practices may provide less protection than is given to investors under the NYSE listing requirements applicable to domestic issuers. For more information, see Item 3.D.
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“Risk Factors — Risks Relating to Ownership of our Ordinary Shares — We are a foreign private issuer and, as a result, we are not subject to U.S. proxy rules and are not subject to Exchange Act reporting obligations that, to some extent, are more lenient and less frequent than those of a U.S. domestic public company” and “Risk Factors — Risks Relating to Ownership of our Ordinary Shares — As we are a “foreign private issuer” and follow certain home country corporate governance practices, our shareholders may not have the same protections afforded to shareholders of companies that are subject to all NYSE corporate governance requirements.”
Item 16H. Mine Safety Disclosure
Not applicable.
Item 16I. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
Not applicable.
Item 16J. Insider Trading Policies
Not applicable.
Item 16K. Cybersecurity
Cybersecurity Risk Management and Strategy
We have developed and implemented a cybersecurity risk management program intended to protect the confidentiality, integrity, and availability of our critical systems and information. Our cybersecurity risk management program includes a cybersecurity incident response plan.
We design and assess our program based on the National Institute of Standards and Technology Cybersecurity Framework (NIST CSF). This does not imply that we meet any particular technical standards, specifications, or requirements, only that we use the NIST CSF as a guide to help us identify, assess, and manage cybersecurity risks relevant to our business.
Our cybersecurity risk management program is integrated into our overall enterprise risk management program, and shares common methodologies, reporting channels and governance processes that apply across the enterprise risk management program to other legal, compliance, strategic, operational, and financial risk areas.
Our cybersecurity risk management program includes:
| ● | risk assessments designed to help identify material cybersecurity risks to our critical systems, information, products, services, and our broader enterprise IT environment; |
| ● | a security team principally responsible for managing (1) our cybersecurity risk assessment processes, (2) our security controls, and (3) our response to cybersecurity incidents; |
| ● | the use of external service providers, where appropriate, to assess, test or otherwise assist with aspects of our security controls; |
| ● | cybersecurity awareness training of our employees, incident response personnel, and senior management; |
| ● | a cybersecurity incident response plan that includes procedures for responding to cybersecurity incidents; and |
| ● | a third-party risk management process for service providers, suppliers, and vendors. |
151
We have not identified risks from known cybersecurity threats, including as a result of any prior cybersecurity incidents, that have materially affected or are reasonably likely to materially affect us, including our operations, business strategy, results of operations, or financial condition.
Cybersecurity Governance
Our Board considers cybersecurity risk as part of its risk oversight function and has delegated to the audit committee oversight of cybersecurity and other information technology risks. The audit committee oversees management’s implementation of our cybersecurity risk management program.
The audit committee receives regular reports from management on our cybersecurity risks. In addition, management updates the audit committee, as necessary, regarding any material cybersecurity incidents, as well as any incidents with lesser impact potential.
The audit committee reports to the full Board regarding its activities, including those related to cybersecurity. The full Board also receives briefings from management on our cyber risk management program. Board members receive presentations on cybersecurity topics from our Group Head of cybersecurity, internal security staff or external experts as part of the Board’s continuing education on topics that impact public companies.
Our information technology function (including our cybersecurity team) are overseen by our management team, and our Group Head of cybersecurity reports directly to a member of our management team. Our management team is therefore responsible for assessing and managing our material risks from cybersecurity threats. The team has primary responsibility for our overall cybersecurity risk management program and supervise both our internal cybersecurity personnel and our retained external cybersecurity consultants. Our Group Head of cybersecurity is a subject matter expert on information security, privacy and IT strategy and management with over 25 years of relevant experience across multiple industries. Our Chief Information Officer also has over 25 years’ of experience in IT, including in cybersecurity, across multiple industries.
Our management team supervises efforts to prevent, detect, mitigate, and remediate cybersecurity risks and incidents through various means, which may include briefings from internal security personnel; threat intelligence and other information obtained from governmental, public or private sources, including external consultants engaged by us; and alerts and reports produced by security tools deployed in the IT environment.
PART III
Item 17. Financial Statements
We have provided financial statements pursuant to Item 18.
Item 18. Financial Statements
The audited consolidated financial statements as required under Item 18 are attached hereto starting on page F-1 of this Annual Report. The audit report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, is included herein preceding the audited consolidated financial statements.
Item 19. Exhibits
List all exhibits filed as part of the registration statement or annual report, including exhibits incorporated by reference.
Incorporation by Reference |
||||||
|---|---|---|---|---|---|---|
Exhibit No. |
Description |
Form |
File No. |
Exhibit No. |
Filing Date |
Filed / Furnished |
1.1 |
Amended and Restated Memorandum and Articles of Association of the Registrant |
20-F |
001-40876 |
1.1 |
03/28/2023 |
|
2.1 |
F-1/A |
333-259593 |
4.1 |
10/4/2021 |
|
|
152
Incorporation by Reference |
||||||
|---|---|---|---|---|---|---|
Exhibit No. |
Description |
Form |
File No. |
Exhibit No. |
Filing Date |
Filed / Furnished |
2.2 |
20-F/A |
001-40876 |
2.2 |
08/16/2022 |
|
|
2.3 |
20-F/A |
001-40876 |
2.3 |
08/16/2022 |
|
|
2.4 |
F-1/A |
333-259593 |
4.4 |
10/4/2021 |
|
|
2.5 |
F-1/A |
333-259593 |
4.5 |
10/4/2021 |
|
|
2.6 |
20-F/A |
001-40876 |
2.6 |
08/16/2022 |
||
2.7 |
20-F |
001-40876 |
2.7 |
03/28/2023 |
||
4.1† |
F-1/A |
333-259593 |
10.1 |
10/4/2021 |
|
|
4.2† |
F-1/A |
333-259593 |
10.2 |
10/4/2021 |
|
|
4.3† |
Form of Non-Employee Director Restricted Stock Unit Award Agreement |
S-8 |
333-260317 |
99.3 |
10/18/2021 |
|
4.4 |
F-1/A |
333-259593 |
10.3 |
10/04/2021 |
|
|
153
Incorporation by Reference |
||||||
|---|---|---|---|---|---|---|
Exhibit No. |
Description |
Form |
File No. |
Exhibit No. |
Filing Date |
Filed / Furnished |
4.5 |
F-1/A |
333-259593 |
10.4 |
10/4/2021 |
|
|
4.6 |
6-K |
001-40876 |
99.3 |
11/15/2022 |
|
|
4.7 |
6-K |
001-40876 |
99.4 |
11/15/2022 |
|
|
4.8 |
20-F |
001-40876 |
4.8 |
03/28/2023 |
||
4.9 |
20-F |
001-40876 |
4.9 |
03/28/2023 |
|
|
4.10 |
6-K |
001-40876 |
99.3 |
11/14/2023 |
|
|
154
Incorporation by Reference |
||||||
|---|---|---|---|---|---|---|
Exhibit No. |
Description |
Form |
File No. |
Exhibit No. |
Filing Date |
Filed / Furnished |
4.11 |
6-K |
001-40876 |
99.2 |
11/14/2023 |
|
|
4.12 |
|
|
|
|
* |
|
4.13 |
|
|
|
|
* |
|
4.14 |
|
|
|
|
* |
|
4.15 |
|
|
|
|
* |
|
8.1 |
|
|
|
|
* |
|
12.1 |
Principal Executive Officer Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
|
|
|
|
* |
12.2 |
Principal Financial Officer Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
|
|
|
|
* |
13.1 |
Principal Executive Officer Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
|
|
|
|
** |
13.2 |
Principal Financial Officer Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
|
|
|
|
** |
15.1 |
Consent of PricewaterhouseCoopers LLP, an independent registered public accounting firm. |
|
|
|
|
* |
97.1 |
IHS Group Policy for Recovery of Erroneously Awarded Compensation |
|
|
|
|
* |
101.INS |
Inline XBRL Instance Document. |
|
|
|
|
* |
101.SCH |
Inline XBRL Taxonomy Extension Schema Document. |
|
|
|
|
* |
155
Incorporation by Reference |
||||||
|---|---|---|---|---|---|---|
Exhibit No. |
Description |
Form |
File No. |
Exhibit No. |
Filing Date |
Filed / Furnished |
101.CAL |
Inline XBRL Taxonomy Extension Calculation Linkbase Document. |
|
|
|
|
* |
101.DEF |
Inline XBRL Taxonomy Definition Linkbase Document. |
|
|
|
|
* |
101.LAB |
Inline XBRL Taxonomy Extension Label Linkbase Document. |
|
|
|
|
* |
101.PRE |
Inline XBRL Taxonomy Extension Presentation Linkbase Document |
|
|
|
|
* |
104 |
Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101). |
|
|
|
|
|
* |
Filed herewith. |
** |
Furnished herewith. |
† |
Indicates management contract or compensatory plan or arrangement. |
Certain agreements filed as exhibits to this Annual Report contain representations and warranties that the parties thereto made to each other. These representations and warranties have been made solely for the benefit of the other parties to such agreements and may have been qualified by certain information that has been disclosed to the other parties to such agreements and that may not be reflected in such agreements. In addition, these representations and warranties may be intended as a way of allocating risks among parties if the statements contained therein prove to be incorrect, rather than as actual statements of fact. Accordingly, there can be no reliance on any such representations and warranties as characterizations of the actual state of facts. Moreover, information concerning the subject matter of any such representations and warranties may have changed since the date of such agreements.
156
SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this annual report on its behalf.
|
IHS HOLDING LIMITED |
|
|
|
|
|
Date: March 12, 2024 |
|
|
|
|
|
By: |
/s/ Sam Darwish |
|
Name: |
Sam Darwish |
|
Title: |
Chief Executive Officer |
|
|
|
|
By: |
/s/ Steve Howden |
|
Name: |
Steve Howden |
|
Title: |
Executive Vice President and |
157
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Report of independent registered public accounting firm (PCAOB ID: 876) |
F-2 |
Consolidated statements of loss and other comprehensive income/(loss) |
F-5 |
F-6 |
|
F-7 |
|
F-8 |
|
F-9 |
|
F-86 |
F-1
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Shareholders of IHS Holding Limited
Opinions on the Financial Statements and Internal Control over Financial Reporting
We have audited the accompanying consolidated statement of financial position of IHS Holding Limited and its subsidiaries (the “Company”) as of December 31, 2023 and 2022, and the related consolidated statements of loss and other comprehensive income/(loss), of changes in equity and of cash flows for each of the three years in the period ended December 31, 2023, including the related notes and financial statement schedule listed in the accompanying index (collectively referred to as the “consolidated financial statements”). We also have audited the Company's internal control over financial reporting as of December 31, 2023, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of December 31, 2023, and 2022, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2023, in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board. Also in our opinion, the Company did not maintain, in all material respects, effective internal control over financial reporting as of December 31, 2023, based on criteria established in Internal Control - Integrated Framework (2013) issued by the COSO because a material weakness in internal control over financial reporting existed as of that date related to a lack of key accounting personnel with the requisite knowledge and experience to account for complex transactions.
A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the annual or interim financial statements will not be prevented or detected on a timely basis. The material weakness referred to above is described in Management’s Annual Report on Internal Control over Financial Reporting appearing under Item 15. We considered this material weakness in determining the nature, timing, and extent of audit tests applied in our audit of the 2023 consolidated financial statements, and our opinion regarding the effectiveness of the Company’s internal control over financial reporting does not affect our opinion on those consolidated financial statements.
Basis for Opinions
The Company's management is responsible for these consolidated financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting included in management's report referred to above. Our responsibility is to express opinions on the Company’s consolidated financial statements and on the Company's internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud, and whether effective internal control over financial reporting was maintained in all material respects.
Our audits of the consolidated financial statements included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.
F-2
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the consolidated financial statements that were communicated or required to be communicated to the audit committee and that (i) relate to accounts or disclosures that are material to the consolidated financial statements and (ii) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.
Revenue Recognition - Estimates of Amounts Recoverable and Unbilled
As described in notes 2.5, 2.16.4, 3.4, 6 and 19 to the consolidated financial statements, revenue is derived from fees paid by customers for services from the colocation business and its ancillary managed services. Total revenues for the year ended December 31, 2023 were $2.1 billion and accrued revenue as of December 31, 2023 amounted to $84.9 million. Initial recognition of revenue is estimated based on an assessment of the recoverability of revenue taking into account the Company’s contractual rights to consideration, its exposure to each customer’s credit risk and management’s practice of managing credit risk exposure through the occasional negotiation of price concessions with customers. Only amounts expected to be recovered at the point of initial recognition are recognized in revenue, and the remainder is considered variable consideration contingent upon the receipt of funds from the customer. The assessment of amounts expected to be recovered is closely aligned with the assumed credit risk of the customer, determined as part of the assessment of expected credit losses made in accordance with the Company’s IFRS 9 expected credit loss policy. Under this policy, management assesses the credit risk of the customer to evaluate the customer’s capacity to meet its contractual cash flow obligations. Management also estimates revenue for services provided where billing is not yet completed, including in respect of 1) tower sites coming into service, or changes in customer implemented technologies since the most recent invoicing cycle, and 2) services subject to ongoing negotiation regarding price or other contract interpretation disputes with customers, based primarily on historical experience. Management recognizes revenue upon the satisfaction of performance obligations on the basis of the expected outcome of such disputed matters.
The principal considerations for our determination that performing procedures relating to revenue recognition - estimates of amounts recoverable and unbilled is a critical audit matter are the significant judgment and estimation required by management in determining (i) the recoverability of revenue and the related estimate of variable consideration; and (ii) the expected outcome of negotiations with customers regarding unbilled and disputed matters. This in turn led to a high degree of subjectivity, judgment and effort in performing procedures and evaluating management’s assessment of (i) the amounts expected to be recovered, including significant assumptions related to the credit risk of the customer; and (ii) the expected outcome of negotiations with customers.
Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the consolidated financial statements. These procedures included, among others: (i) inspecting a sample of contracts to evaluate the treatment of unusual terms; (ii) testing management’s methods to estimate the variable consideration and the amount of revenue in respect of disputed matters; (iii) testing the accuracy of underlying data used in the calculation of these estimates; (iv) evaluating management’s assumption of customer credit risk and recoverability when estimating the variable consideration assigned to contracts at initial recognition; and (v) considering historical experience in collection of amounts where billing is delayed.
F-3
Goodwill Impairment
As described in notes 2.13, 2.14, 15 and 15.1 to the consolidated financial statements, goodwill impairment reviews are undertaken annually or more frequently if events or changes in circumstances indicate a potential impairment. The Company’s goodwill balance as of December 31, 2023 was $619.3 million. To undertake the goodwill impairment review, the carrying value of the cash generating unit (CGU) or group of CGUs containing goodwill is compared to the recoverable amount, which is the higher of its value in use and its fair value less costs of disposal. An impairment loss is recognized for the amount by which the carrying value exceeds the recoverable amount. The recoverable amount of each CGU, or group of CGUs, except for the IHS Latam Tower businesses group of CGUs and the I-Systems CGU, was determined based on their value in use. The recoverable amount of the IHS Latam Tower businesses group of CGUs and the I-Systems CGU was determined based on fair value less costs of disposal. The key assumptions to which these recoverable amount calculations are most sensitive are revenue growth (taking into account tenancy rates and, for the I-Systems CGU, homes connected), gross margins, terminal growth rates, weighted average cost of capital and costs of disposal.
The principal considerations for our determination that performing procedures relating to goodwill impairment is a critical audit matter are (i) the significant judgment and estimation required by management in developing the estimated recoverable amount; (ii) the high degree of auditor judgment, subjectivity and effort in performing procedures and evaluating management’s valuation methods, calculations and significant assumptions related to revenue growth, gross margins, terminal growth rates, weighted average cost of capital, and costs of disposal; and (iii) the audit effort involved the use of professionals with specialized skill and knowledge. As described in the “Opinions on the Financial Statements and Internal Control over Financial Reporting” section, a material weakness was identified in relation to this matter.
Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the consolidated financial statements. These procedures included, among others: (i) assessing management’s process for developing the estimated recoverable amounts; (ii) evaluating the appropriateness of the value in use and fair value less costs of disposal models; (iii) testing the completeness, accuracy and relevance of underlying data used in the estimate; and (iv) evaluating significant assumptions used by management related to revenue growth, gross margins, terminal growth rates, weighted average cost of capital and costs of disposal. Evaluating significant assumptions used by management involved determining whether the assumptions used by management were reasonable considering: (i) the current and past performance of the relevant CGUs; (ii) the consistency with external market data; and (iii) whether those assumptions were consistent with evidence obtained in other areas of the audit. Professionals with specialized skill and knowledge were used to assist in the evaluation of the weighted average cost of capital, terminal growth rate and costs of disposal assumptions within management’s models.
/s/PricewaterhouseCoopers LLP
London, United Kingdom
March 12, 2024
We have served as the Company’s auditor since 2017.
F-4
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
CONSOLIDATED STATEMENT OF LOSS AND OTHER COMPREHENSIVE INCOME/(LOSS)
|
|
|
|
2023 |
|
2022 |
* |
2021 |
|
|
Note |
|
$’000 |
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
|
|
Revenue |
|
6 |
|
2,125,539 |
|
1,961,299 |
|
1,579,730 |
Cost of sales |
|
7 |
|
(1,183,306) |
|
(1,157,001) |
|
(907,388) |
Administrative expenses |
|
8 |
|
(404,783) |
|
(501,175) |
|
(336,511) |
(Net loss allowance)/net reversal of loss allowance on trade receivables |
|
8 |
|
(7,202) |
|
4,446 |
|
34,031 |
Other income |
|
9 |
|
404 |
|
4,676 |
|
18,509 |
Operating profit |
|
|
|
530,652 |
|
312,245 |
|
388,371 |
Finance income |
|
10 |
|
25,209 |
|
15,825 |
|
25,522 |
Finance costs |
|
11 |
|
(2,436,511) |
|
(872,049) |
|
(422,034) |
Loss before income tax |
|
|
|
(1,880,650) |
|
(543,979) |
|
(8,141) |
Income tax (expense)/benefit |
|
12 |
|
(107,528) |
|
75,013 |
|
(17,980) |
Loss for the year |
|
|
|
(1,988,178) |
|
(468,966) |
|
(26,121) |
|
|
|
|
|
|
|
|
|
Loss attributable to: |
|
|
|
|
|
|
|
|
Owners of the Company |
|
|
|
(1,976,609) |
|
(459,007) |
|
(25,832) |
Non-controlling interest |
|
27 |
|
(11,569) |
|
(9,959) |
|
(289) |
Loss for the year |
|
|
|
(1,988,178) |
|
(468,966) |
|
(26,121) |
|
|
|
|
|
|
|
|
|
Loss per share – basic |
|
13 |
|
(5.93) |
|
(1.39) |
|
(0.09) |
Loss per share – diluted |
|
13 |
|
(5.93) |
|
(1.39) |
|
(0.09) |
|
|
|
|
|
|
|
|
|
Other comprehensive income/(loss) |
|
|
|
|
|
|
|
|
Items that may be reclassified to profit or loss |
|
|
|
|
|
|
|
|
Fair value gain through other comprehensive income |
|
|
|
12 |
|
— |
|
3 |
Exchange differences on translation of foreign operations |
|
|
|
970,796 |
|
72,661 |
|
(28,313) |
Other comprehensive income/(loss) for the year, net of taxes |
|
|
|
970,808 |
|
72,661 |
|
(28,310) |
|
|
|
|
|
|
|
|
|
Total comprehensive loss for the year |
|
|
|
(1,017,370) |
|
(396,305) |
|
(54,431) |
|
|
|
|
|
|
|
|
|
Total comprehensive loss for the year attributable to: |
|
|
|
|
|
|
|
|
Owners of the Company |
|
|
|
(1,025,754) |
|
(399,486) |
|
(48,389) |
Non-controlling interest |
|
|
|
8,384 |
|
3,181 |
|
(6,042) |
Total comprehensive loss for the year |
|
|
|
(1,017,370) |
|
(396,305) |
|
(54,431) |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
The accompanying notes are an integral part of these consolidated financial statements.
F-5
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
CONSOLIDATED STATEMENT OF FINANCIAL POSITION
|
|
|
|
2023 |
|
2022 |
* |
|
|
Note |
|
$’000 |
|
$’000 |
|
Non-current assets |
|
|
|
|
|
|
|
Property, plant and equipment |
|
14 |
|
1,740,235 |
|
2,075,441 |
|
Right of use assets |
|
14 |
|
886,909 |
|
965,019 |
|
Goodwill |
|
15 |
|
619,298 |
|
763,388 |
|
Other intangible assets |
|
15 |
|
933,030 |
|
1,049,103 |
|
Fair value through other comprehensive income financial assets |
|
|
|
13 |
|
10 |
|
Deferred income tax assets |
|
16 |
|
63,786 |
|
78,369 |
|
Derivative financial instrument assets |
|
18 |
|
1,540 |
|
6,121 |
|
Trade and other receivables |
|
19 |
|
147,292 |
|
130,347 |
|
|
|
|
|
4,392,103 |
|
5,067,798 |
|
Current assets |
|
|
|
|
|
|
|
Inventories |
|
17 |
|
40,589 |
|
74,216 |
|
Income tax receivable |
|
12 |
|
3,755 |
|
1,174 |
|
Derivative financial instrument assets |
|
18 |
|
565 |
|
— |
|
Trade and other receivables |
|
19 |
|
607,835 |
|
663,467 |
|
Cash and cash equivalents |
|
20 |
|
293,823 |
|
514,078 |
|
Assets held for sale |
|
14 |
|
26,040 |
|
— |
|
|
|
|
|
972,607 |
|
1,252,935 |
|
|
|
|
|
|
|
|
|
TOTAL ASSETS |
|
|
|
5,364,710 |
|
6,320,733 |
|
|
|
|
|
|
|
|
|
Current liabilities |
|
|
|
|
|
|
|
Trade and other payables |
|
21 |
|
532,627 |
|
669,149 |
|
Provisions for other liabilities and charges |
|
24 |
|
277 |
|
483 |
|
Derivative financial instrument liabilities |
|
18 |
|
68,133 |
|
1,393 |
|
Income tax payable |
|
12 |
|
75,612 |
|
70,008 |
|
Borrowings |
|
22 |
|
454,151 |
|
438,114 |
|
Lease liabilities |
|
23 |
|
91,156 |
|
87,240 |
|
|
|
|
|
1,221,956 |
|
1,266,387 |
|
Non-current liabilities |
|
|
|
|
|
|
|
Trade and other payables |
|
21 |
|
4,629 |
|
1,459 |
|
Borrowings |
|
22 |
|
3,056,696 |
|
2,906,288 |
|
Lease liabilities |
|
23 |
|
510,838 |
|
518,318 |
|
Provisions for other liabilities and charges |
|
24 |
|
86,131 |
|
84,533 |
|
Deferred income tax liabilities |
|
16 |
|
137,106 |
|
183,518 |
|
|
|
|
|
3,795,400 |
|
3,694,116 |
|
|
|
|
|
|
|
|
|
TOTAL LIABILITIES |
|
|
|
5,017,356 |
|
4,960,503 |
|
|
|
|
|
|
|
|
|
Stated capital |
|
25 |
|
5,394,812 |
|
5,311,953 |
|
Accumulated losses |
|
|
|
(5,293,394) |
|
(3,317,652) |
|
Other reserves |
|
26 |
|
8,430 |
|
(861,271) |
|
Equity attributable to owners of the Company |
|
|
|
109,848 |
|
1,133,030 |
|
Non-controlling interest |
|
27 |
|
237,506 |
|
227,200 |
|
TOTAL EQUITY |
|
|
|
347,354 |
|
1,360,230 |
|
|
|
|
|
|
|
|
|
TOTAL EQUITY AND LIABILITIES |
|
|
|
5,364,710 |
|
6,320,733 |
|
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
The accompanying notes are an integral part of these consolidated financial statements.
F-6
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
CONSOLIDATED STATEMENT OF CHANGES IN EQUITY
|
|
Attributable to owners of the Company |
||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
Stated |
|
Accumulated |
|
Other |
|
|
|
controlling |
|
Total |
|
|
|
|
capital |
|
losses |
|
reserves |
|
Total |
|
interest |
|
Equity |
|
|
Note |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at Jan 1, 2021 |
|
|
|
4,530,870 |
|
(2,835,390) |
|
(485,505) |
|
1,209,975 |
|
14,216 |
|
1,224,191 |
NCI arising on business combination |
|
27 |
|
— |
|
— |
|
— |
|
— |
|
215,014 |
|
215,014 |
Issue of shares net of transaction costs |
|
|
|
349,846 |
|
— |
|
— |
|
349,846 |
|
— |
|
349,846 |
Options converted to shares |
|
26 |
|
342,768 |
|
— |
|
(342,768) |
|
— |
|
— |
|
— |
Share-based payment expense |
|
26 |
|
— |
|
— |
|
13,003 |
|
13,003 |
|
— |
|
13,003 |
Other reclassifications related to share-based payment |
|
|
|
— |
|
1,017 |
|
(5,084) |
|
(4,067) |
|
— |
|
(4,067) |
Total transactions with owners of the Company |
|
|
|
692,614 |
|
1,017 |
|
(334,849) |
|
358,782 |
|
215,014 |
|
573,796 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss for the year |
|
|
|
— |
|
(25,832) |
|
— |
|
(25,832) |
|
(289) |
|
(26,121) |
Other comprehensive loss |
|
|
|
— |
|
— |
|
(22,557) |
|
(22,557) |
|
(5,753) |
|
(28,310) |
Total comprehensive loss |
|
|
|
— |
|
(25,832) |
|
(22,557) |
|
(48,389) |
|
(6,042) |
|
(54,431) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at Dec 31, 2021 |
|
|
|
5,223,484 |
|
(2,860,205) |
|
(842,911) |
|
1,520,368 |
|
223,188 |
|
1,743,556 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at Jan 1, 2022 |
|
|
|
5,223,484 |
|
(2,860,205) |
|
(842,911) |
|
1,520,368 |
|
223,188 |
|
1,743,556 |
NCI arising on business combination |
|
27 |
|
— |
|
— |
|
— |
|
— |
|
831 |
|
831 |
Options converted to shares |
|
26 |
|
88,469 |
|
— |
|
(88,469) |
|
— |
|
— |
|
— |
Share-based payment expense |
|
26 |
|
— |
|
— |
|
13,423 |
|
13,423 |
|
— |
|
13,423 |
Other reclassifications related to share-based payment |
|
|
|
— |
|
1,560 |
|
(2,835) |
|
(1,275) |
|
— |
|
(1,275) |
Total transactions with owners of the Company |
|
|
|
88,469 |
|
1,560 |
|
(77,881) |
|
12,148 |
|
831 |
|
12,979 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss for the year* |
|
|
|
— |
|
(459,007) |
|
— |
|
(459,007) |
|
(9,959) |
|
(468,966) |
Other comprehensive income* |
|
|
|
— |
|
— |
|
59,521 |
|
59,521 |
|
13,140 |
|
72,661 |
Total comprehensive (loss)/income* |
|
|
|
— |
|
(459,007) |
|
59,521 |
|
(399,486) |
|
3,181 |
|
(396,305) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at Dec 31, 2022 |
|
|
|
5,311,953 |
|
(3,317,652) |
|
(861,271) |
|
1,133,030 |
|
227,200 |
|
1,360,230 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at Jan 1, 2023 |
|
|
|
5,311,953 |
|
(3,317,652) |
|
(861,271) |
|
1,133,030 |
|
227,200 |
|
1,360,230 |
Shares repurchased and canceled through buyback program |
|
25 |
|
(10,037) |
|
— |
|
— |
|
(10,037) |
|
— |
|
(10,037) |
NCI arising on business combination |
|
27 |
|
— |
|
— |
|
— |
|
— |
|
1,922 |
|
1,922 |
Options converted to shares |
|
26 |
|
92,896 |
|
— |
|
(92,896) |
|
— |
|
— |
|
— |
Share-based payment expense |
|
26 |
|
— |
|
— |
|
13,168 |
|
13,168 |
|
— |
|
13,168 |
Other reclassifications related to share-based payment |
|
|
|
— |
|
867 |
|
(1,426) |
|
(559) |
|
— |
|
(559) |
Total transactions with owners of the Company |
|
|
|
82,859 |
|
867 |
|
(81,154) |
|
2,572 |
|
1,922 |
|
4,494 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss for the year |
|
|
|
— |
|
(1,976,609) |
|
— |
|
(1,976,609) |
|
(11,569) |
|
(1,988,178) |
Other comprehensive income |
|
|
|
— |
|
— |
|
950,855 |
|
950,855 |
|
19,953 |
|
970,808 |
Total comprehensive (loss)/income |
|
|
|
— |
|
(1,976,609) |
|
950,855 |
|
(1,025,754) |
|
8,384 |
|
(1,017,370) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at Dec 31, 2023 |
|
|
|
5,394,812 |
|
(5,293,394) |
|
8,430 |
|
109,848 |
|
237,506 |
|
347,354 |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
The accompanying notes are an integral part of these consolidated financial statements.
F-7
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
CONSOLIDATED STATEMENT OF CASH FLOWS
|
|
|
|
2023 |
|
2022 |
|
2021 |
|
|
Note |
|
$’000 |
|
$’000 |
|
$’000 |
Cash flows from operating activities |
|
|
|
|
|
|
|
|
Cash from operations |
|
29 |
|
902,923 |
|
966,874 |
|
788,073 |
Income taxes paid |
|
12 |
|
(45,411) |
|
(51,245) |
|
(29,147) |
Payment for rent |
|
|
|
(3,716) |
|
(7,983) |
|
(8,506) |
Payment for tower and tower equipment decommissioning |
|
24 |
|
(343) |
|
(343) |
|
(231) |
Net cash generated from operating activities |
|
|
|
853,453 |
|
907,303 |
|
750,189 |
|
|
|
|
|
|
|
|
|
Cash flows from investing activities |
|
|
|
|
|
|
|
|
Purchase of property, plant and equipment |
|
|
|
(464,897) |
|
(378,521) |
|
(238,145) |
Payment in advance for property, plant and equipment |
|
|
|
(111,065) |
|
(165,154) |
|
(159,276) |
Purchase of software and licenses |
|
|
|
(22,811) |
|
(15,695) |
|
(5,054) |
Consideration paid on business combinations, net of cash acquired |
|
31 |
|
(4,486) |
|
(735,740) |
|
(401,039) |
Proceeds from disposal of property, plant and equipment |
|
|
|
2,919 |
|
1,826 |
|
4,742 |
Insurance claims received |
|
|
|
321 |
|
2,100 |
|
16,672 |
Interest income received |
|
10 |
|
25,008 |
|
15,170 |
|
7,798 |
Deposit of short-term deposits |
|
|
|
(183,400) |
|
(512,105) |
|
(103,647) |
Refund of short-term deposits |
|
|
|
36,162 |
|
270,831 |
|
— |
Net cash used in investing activities |
|
|
|
(722,249) |
|
(1,517,288) |
|
(877,949) |
|
|
|
|
|
|
|
|
|
Cash flows from financing activities |
|
|
|
|
|
|
|
|
Capital raised |
|
25 |
|
— |
|
— |
|
378,000 |
Cost of capital raised |
|
|
|
— |
|
— |
|
(28,154) |
Transactions with non-controlling interest |
|
|
|
— |
|
11 |
|
— |
Shares repurchased and canceled through buyback program |
|
25 |
|
(10,037) |
|
— |
|
— |
Bank loans and bond proceeds received (net of transaction costs) |
|
22 |
|
986,604 |
|
1,263,272 |
|
1,076,063 |
Bank loans and bonds repaid |
|
22 |
|
(689,940) |
|
(506,504) |
|
(653,504) |
Fees on loans and derivative instruments |
|
|
|
(19,441) |
|
(19,911) |
|
(20,426) |
Interest paid |
|
22 |
|
(299,029) |
|
(234,567) |
|
(168,285) |
Costs paid on early loan settlement |
|
11 |
|
— |
|
— |
|
(18,171) |
Payment for the principal of lease liabilities |
|
23 |
|
(72,854) |
|
(76,629) |
|
(63,324) |
Interest paid for lease liabilities |
|
23 |
|
(58,443) |
|
(36,178) |
|
(32,923) |
Margin received on non-deliverable forwards |
|
|
|
— |
|
12,854 |
|
36,714 |
Initial margin deposited on non-deliverable forwards |
|
|
|
— |
|
— |
|
(19,436) |
Premium paid on derivative instruments |
|
|
|
— |
|
(910) |
|
— |
Profits received/(losses settled) on derivative instruments |
|
|
|
839 |
|
(3,197) |
|
37,711 |
Net cash (used in)/generated from financing activities |
|
|
|
(162,301) |
|
398,241 |
|
524,265 |
|
|
|
|
|
|
|
|
|
Net (decrease)/increase in cash and cash equivalents |
|
|
|
(31,097) |
|
(211,744) |
|
396,505 |
Cash and cash equivalents at beginning of year |
|
|
|
514,078 |
|
916,488 |
|
585,416 |
Effect of movements in exchange rates on cash |
|
|
|
(189,158) |
|
(190,666) |
|
(65,433) |
Cash and cash equivalents at end of year |
|
20 |
|
293,823 |
|
514,078 |
|
916,488 |
The accompanying notes are an integral part of these consolidated financial statements.
F-8
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
1.General information
These consolidated financial statements are the financial statements of IHS Holding Limited (‘the Company’) and its subsidiaries (together hereafter referred to as ‘the Group’ or ‘IHS’). IHS Holding Limited is incorporated in the Cayman Islands under the Companies Act (as amended) as an exempted company with limited liability. The Company is domiciled in the Cayman Islands and the address of its registered office is 190 Elgin Avenue, George Town, Grand Cayman KY1-9008, Cayman Islands.
IHS is principally involved in providing infrastructure for the telecommunications industry. The consolidated financial statements are presented in US Dollars ($) and all values are rounded to the nearest thousands, except where otherwise indicated.
These consolidated financial statements have been authorized for issue on March 11, 2024 by the Board of Directors.
2.Summary of material accounting policies
The principal accounting policies applied in the preparation of these financial statements are set out below. These policies have been consistently applied to all the periods presented, unless otherwise stated.
2.1Basis of preparation
The consolidated financial statements of IHS have been prepared in accordance with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board (IASB).
The consolidated financial statements have been prepared under the historical cost convention, as modified by financial assets and liabilities (including derivative financial instruments) which are recognized at fair value.
2.1.1Changes in accounting policies and disclosures
The accounting policies adopted are consistent with those of the previous financial year, except the new standards, amendments and interpretations adopted by the Group during the year.
The Group has applied the following standards and amendments for the first time for its annual reporting period commencing January 1, 2023:
Amendments to IAS 12 announced in May 2021 require companies to recognize deferred tax on transactions that, on initial recognition, give rise to equal amounts of taxable and deductible temporary differences. The amendments typically apply where assets and liabilities are recognized from a single transaction, such as leases for the lessee. The Group performed an analysis of the impact of these amendments and concluded that these did not have a material impact on the net assets of the Group. However, the Group has disclosed separately the deferred tax liabilities and potential deferred tax assets arising with respect to assets and liabilities IFRS 16 lease accounting and decommissioning provisions for the year ended December 31, 2023 and for the comparative periods.
F-9
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
The United Kingdom has enacted a Multinational Top-Up Tax based upon the Organization for Economic Co-operation and Development Pillar Two Global Anti-Base Erosion Rules (“Pillar Two”). The legislation will be effective for the Group’s financial year beginning January 1, 2024. The Group is in scope by virtue of the parent company being tax resident in the UK. Therefore, the Group has performed an assessment of the Group’s potential exposure to Pillar Two income taxes for the year ending on December 31, 2024.
The assessment of the potential exposure to Pillar Two income taxes is based on the most recent tax filings, country-by-country reporting and financial statements available for the constituent entities in the Group. Based on the assessment, the Group has identified potential exposure to Pillar Two income taxes in respect of profits earned in the United Arab Emirates and Mauritius. The potential exposure comes from the constituent entities in these jurisdictions where the Pillar Two effective tax rate is below 15%. The Pillar Two effective tax rate is lower in these jurisdictions due to the rate of tax and tax exemptions applicable in those jurisdictions. Profits for those jurisdictions for the year ended December 31, 2023 that would have been subject to Pillar Two income taxes would have increased the group current tax expense for the year by between 15% to 20% compared to the previous amount.
The IASB issued amendments to IAS 12 ‘Income taxes’ introducing a mandatory temporary exception to the requirements of IAS 12 under which a company does not recognize or disclose information about deferred tax assets and liabilities related to the proposed OECD/G20 BEPS Pillar Two model rules. The Group applied the temporary exception.
Other than the above, none of the above amendments to standards had a material effect on the Group’s financial statements.
Certain new accounting standards, interpretations and amendments have been published that are not effective for December 31, 2023 reporting period and have not been early adopted by the Group. They are:
The Company is in the process of analysing the impact of the amendments to IAS 21. Other than this, none of the above amendments to standards are expected to have a material effect on the Group’s financial statements.
2.2.Consolidation
(a)Subsidiaries
The consolidated financial statements include the financial information and results of the Company and those entities in which it has a controlling interest. The Group controls an entity when the Group is exposed to, or has rights to, variable returns from its involvement with the entity and has the ability to affect those returns through its power over the entity. Subsidiaries are all entities (including structured entities) over which the Group has control. Subsidiaries are fully consolidated from the date on which control is transferred to the Group. They are deconsolidated from the date the control ceases. All intercompany balances and transactions have been eliminated.
(b)Business Combinations
For acquisitions that meet the definition of a business combination, the Group applies the acquisition method of accounting where assets acquired and liabilities assumed are recorded at fair value at the date of each acquisition, and the results of operations are included with those of the Group from the dates of the respective acquisitions. Any excess of the purchase price paid by the Group over the amounts recognized for assets acquired and liabilities assumed is recorded as goodwill and any acquisition related costs are expensed as incurred.
F-10
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
The Group recognizes any non-controlling interest in the acquiree either at fair value or at the non-controlling interest’s proportionate share of the recognized amounts of the acquiree’s identifiable net assets.
The consideration transferred for the acquisition comprises the fair value of the assets transferred, liabilities incurred, equity interests issued by the Group and any contingent consideration. Where settlement of any part of cash consideration is deferred, the amounts payable in the future are discounted to their present value as at the date of exchange. The discount rate used is the entity’s incremental borrowing rate, being the rate at which a similar borrowing could be obtained from an independent financier under comparable terms and conditions.
If the Group gains control in a business combination in stages, the acquisition date carrying value of the acquirer’s previously held equity interest in the acquiree is remeasured to fair value at the acquisition date; any gains or losses arising from such remeasurement are recognized in profit or loss.
Where the group acquires a portfolio of tower assets and associated revenue contracts judgement is required in the determining whether the transaction meets the definition of a business combination. The Group makes this judgement on a case by case basis taking into account the specific facts and circumstances of each transaction including the substance of other elements of the transactions such as transferred systems, processes, workforce and novated supplier contracts.
The Group has considered whether any of its business combinations represent a sale and leaseback transaction from a lessor perspective. It has been determined that since the space on towers and associated assets are able to be leased to multiple tenants without restriction, that no such arrangement of the entire tower site portfolio acquired exists.
(c)Transactions with non-controlling interests
The Group treats transactions with non-controlling interests as transactions with equity owners of the Company. A change in ownership interest results in an adjustment between the carrying amounts of the controlling and non-controlling interests to reflect their relative interests in the subsidiary. Any difference between the amount of the adjustment to non-controlling interests and any consideration paid or received is recognized in a separate reserve within equity attributable to owners of the Company.
2.3Segment reporting
Operating segments are components of IHS’ business activities about which separate financial statements are available and reported internally to the chief operating decision maker. The Group’s Executive Committee has been identified as the chief operating decision maker, responsible for allocating resources and assessing performance of the operating segments.
The Group’s Executive Committee currently consists of the Chief Executive Officer (“CEO”), the Chief Operating Officer (“COO”), the Chief Financial Officer (“CFO”), the General Counsel, the IHS Nigeria CEO, the Chief Human Resource Officer and the Executive Vice President of Communications.
Where operating segments share similar characteristics, they have been aggregated into reportable segments, of which the Group has identified four: Nigeria, Sub Saharan Africa (“SSA”), Middle East and North Africa (“MENA”) and Latin America (“Latam”).
2.4Foreign currency translation
(a)Functional and presentation currency
Items included in the financial statements of each of the Group’s entities are measured using the currency of the primary economic environment in which the entity operates (the “functional currency”). The consolidated financial statements are presented in US Dollars.
F-11
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
(b)Existence of multiple official exchange rates
In the event that there are multiple official exchange rates available for a specific currency, the Group assesses the appropriate rate to use and takes into account relevant factors. In the case of translating foreign operations or foreign transactions, such factors include access to those rates in the future to meet payments or dividends. In determining whether it is appropriate to move from one official rate to another, the Group considers the available rates in official markets for settlement of transactions. Refer to note 3 for further information.
(c)Transactions and balances
Foreign currency transactions are translated into the functional currency of each entity using the exchange rates prevailing at the dates of the transactions or valuation where items are remeasured. Foreign exchange gains and losses resulting from the settlement of such transactions and from the translation at year end exchange rates of monetary assets and liabilities denominated in foreign currencies are recognized in profit or loss. Foreign exchange gains and losses that relate to borrowings and cash and cash equivalents are presented in the statement of income and other comprehensive income within “finance income” or “finance cost.” Foreign exchange gains and losses that relate to other monetary items are presented in the statement of income and other comprehensive income within “cost of sales,” “administrative expense” and “other income” as appropriate.
Non-monetary items that are measured at fair value in a foreign currency are translated using the exchange rates at the date when the fair value was determined. Translation differences on assets and liabilities carried at fair value are reported as part of the fair value gain or loss. For example, translation differences on non-monetary assets and liabilities such as equities designated as fair value through other comprehensive income are recognized in other comprehensive income.
The subsidiaries based in Nigeria initially translated their foreign currency transactions into the functional currency, Nigerian Naira, at the Nigerian Autonomous Foreign Exchange Fixing (“NAFEX”) prevailing rate at the date of the transaction. From March 2023 Nigerian subsidiaries switched to using the relevant exchange rate published by Bloomberg, which approximately aligned to the I&E window rate (renamed to NAFEM in October 2023), for translation of foreign currency transactions into the functional currency. Monetary items and liabilities denominated in foreign currencies were also translated at the NAFEM rate. Refer to note 3 for further information on foreign exchange rate assessment.
The USD/NGN rate was between 461.50 and 911.68 during 2023 (2022: 416.00 and 461.50, 2021: 394.13 and 435.00) and at December 31, 2023 was 911.68 (December 31,2022: 461.50, December 31, 2021: 435.00). After the introduction of the NAFEM rate in 2023, the Naira devalued to the USD and continued to experience volatility throughout the financial year, with the average rate for December 2023 being 840.96 (2022: 451.01, 2021: 415.60).
The results and financial position of all the Group entities (none of which has the currency of a hyper inflationary economy) that have a functional currency different from the presentation currency are translated into the presentation currency as follows:
| ● | assets and liabilities for each statement of financial position presented are translated at the closing rate at the date of that statement of financial position, |
| ● | income and expenses for each statement of income and other comprehensive income are translated at the monthly average exchange rates (unless this average is not a reasonable approximation of the cumulative effect of the rates prevailing on the transaction dates, in which case income and expenses are translated at the rate on the dates of the transactions), and |
| ● | all resulting exchange differences are recognized in other comprehensive income. |
On consolidation, exchange differences arising from the translation of the net investment in foreign operations and of borrowings are taken to other comprehensive income.
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IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
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Goodwill and fair value adjustments arising on the acquisition of a foreign entity are treated as assets and liabilities of the foreign entity and translated at the closing rate. Exchange differences arising are recognized in other comprehensive income.
2.5Revenue recognition
Our revenue is derived from fees paid by our customers for services from our colocation business and its ancillary managed services.
The colocation business involves the lease of space on IHS owned and leased towers and our fixed copper and fibre network infrastructure, which are shared by various operators and data service providers. Revenue is generated on towers either from anchor tenants (original tenants on towers) or colocation tenants (subsequent tenants) when they install equipment on towers and on cable and fibre networks from tenants when they use the fixed network infrastructure to provide connectivity to/from towers or to provide broadband services to their customers. A portion of colocation arrangements for the rental of space on the towers, other assets on tower sites on which the use of space is dependent and the use of fixed copper and fibre network infrastructure dedicated to an individual customer is within the scope of IFRS 16 Leases. A portion of colocation arrangements for the provision of services, energy charges and use of shared fixed copper and fibre network infrastructure is within the scope of IFRS 15 ‘Revenue from contracts with customers’ as a provision of service. The Group also offers ancillary services to manage tenant operations of existing customers on a limited basis. Revenue from such managed services is within the scope of IFRS 15 ‘Revenue from contracts with customers’.
In determining the amounts of colocation revenue from our contracts with customers that fall within the scope of IFRS 15 or IFRS 16, the Group considers whether there are separate performance obligations to which a portion of the transaction price needs to be allocated and revenue recognized separately.
For colocation services the Group determines the transaction price (including lease and non-lease elements) at contract inception and considers the effects of:
| ● | Variable consideration - The contractual price may be subject to service credits, price indexation, discounts provided on site consolidation and discounts associated with site occupancy. All of these items of variable consideration are considered to relate to individual service periods of series performance obligations, or represent contingent rentals, and are therefore recognized in the future periods in which they arise rather than when estimating the transaction price at contract inception. |
| ● | The existence of significant financing components - Financing components are not expected to be significant as services and payments are generally in line over the period of the contract. |
| ● | Consideration payable to the customer (if any) - Payments to customers (such as rebates and discounts refunded to the customer and payments for exit fees) are deducted from transaction price unless they are payments for a distinct good or service supplied to the Group in return for the payments. |
At the date of contract inception, the Group determines the stand-alone selling prices of the performance obligations (including the lease elements of the contract) using a combination of data on observable prices from comparable managed service arrangements, supplemented by the cost plus a margin approach. The Group allocates the transaction price to these non-lease elements of the contract and between performance obligations within the non-lease element of the contract on the basis of relative stand-alone selling price.
Revenue is typically invoiced quarterly in advance except where a deferral of invoicing has been agreed with a customer such as where there is an ongoing dispute over pricing in which case revenue is recognized upon satisfaction of performance obligations on the basis of the expected outcome of such disputes. Customer contracts typically require payment within 30 to 60 days.
Revenue also includes estimates for services provided where billing is not completed, including in respect of (1) tower sites coming into service, or changes in customer implemented technologies since the most recent invoicing cycle and (2) services subject to ongoing negotiation regarding price or other contract interpretation disputes with customers. For each of these scenarios, revenue is accrued based on management’s expectation of the final billable amounts based primarily on historical experience.
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IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
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(a)Colocation services revenue (non-lease)
For non-lease revenue, two separate performance obligations have typically been identified, one in respect of the operation of tower infrastructure and one in respect of the provision of maintenance services and power, with each being a series of performance obligations to stand ready to deliver the required services.
The identification of these two performance obligations does not change the timing of revenue recognition of the non-lease component as both are typically satisfied over the same time period. In limited cases, contracts may provide the customer with a right to purchase additional services at a significant discount. In these cases, the material right is also identified as a performance obligation.
On initial recognition of revenue, the Group assesses the recoverability of revenue taking into account our contractual rights and obligations to consideration, our exposure to our customer’s credit risk and our practice of managing credit risk exposure through the occasional negotiation of price concessions with customers and recognizes the revenue, in respect of satisfied performance obligations, which is expected to be recovered. Recognition of amounts not expected to be recovered is considered variable consideration and is contingent upon the receipt of funds from the customer (see note 3.4). The assessment of amounts expected to be recovered are closely aligned with the assumed credit risk of the customer, determined as part of the assessment of expected credit losses made in accordance with the Group’s IFRS 9 expected credit loss policy as described in note 2.16.4.
(b)Colocation services revenue for which the Group is a lessor
The portion of colocation revenue, for which IHS is the lessor, is treated as a lease. Contracts are assessed at inception to determine whether this element of the colocation services are finance or operating leases. At present all arrangements are assessed to be operating leases with revenue including fixed escalation clauses present in non-cancellable lease agreements recognized on a straight line basis over the current lease term of the related lease agreements, when collectability is reasonably assured. The duration of these lease arrangements is typically between 5 and 10 years. Escalation clauses tied to the Consumer Price Index (“CPI”) or other inflation based indices, are excluded from the straight line calculation, however, any fixed increases are included.
Revenue is recognized in the accounting period in which the rental income is earned and services are rendered. Amounts billed or received for services prior to being earned are deferred and reflected in deferred revenue until the criteria for recognition have been met.
(c)Managed services revenue
Revenue from managed services contracts with customers is recognized when the services are delivered at an amount that reflects the consideration to which the Group expects to be entitled in exchange for those services.
Revenue is recognized in the accounting period in which the services are rendered by reference to the stage of completion based on the terms of each contract. Services revenues are derived under contracts or arrangements with customers that provide for billings either on a fixed price basis or a variable price basis, which includes factors such as time and expenses. Revenues are recognized as services are performed. Amounts billed or received for services prior to being earned are deferred and reflected in deferred revenue in the accompanying statement of financial position until the criteria for recognition have been met.
2.6Embedded derivatives in revenue contracts
Certain revenue contracts and subsequent amendments include fees that are priced in $ but are invoiced and settled in the relevant local currency of the operation using foreign exchange rates calculated in accordance with the contractual terms.
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IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
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Where the contractual foreign exchange rates are reset at regular intervals in arrears, management evaluates and determines at the date of inception, or at the date of material modification, of the contracts whether the reset features are closely related to the host contracts or not.
For existing contracts in making the evaluation, management assessed that the $ is a commonly used currency in the local operation, and that the reset interval is sufficiently frequent to approximate the local currency spot exchange rate given economic conditions at that time. Management also considers whether, at the time of inception or material modification, contract rates reference a liquid market exchange rate. If reference rates are assessed as liquid the embedded derivative is assessed as closely related and no accounting bifurcation is made.
Where such fees that are priced in $ are translated to local currency at the time of billing using a fixed, pre-determined exchange rate or an exchange rate which is not referenced to a liquid market exchange rate, this results in an embedded derivative which is not closely related to the host contract and is thus bifurcated, fair valued and disclosed separately. The fair values of these embedded derivatives are determined by reference to the discounted forecast billings under the contractual rates compared to those under the forecast liquid market rates.
Upon initial recognition of a revenue embedded derivative asset or liability, the Group recognizes a contract liability or asset, respectively. The contract liability or asset is released to revenue over the shorter of the term of the contract or the term over which the conditions that result in the embedded derivative expire. The release to revenue is recognized on the same basis that those contractual conditions materialize, to match the release of the contract liability or asset to the recognition of revenue from the underlying contract.
2.7Leases
The Group is a lessee of various assets, comprising land and building, towers, equipment and motor vehicles. The determination whether an arrangement is, or contains, a lease is based on whether the contract conveys a right to control the use of an identified asset for a period of time in exchange for consideration.
The following sets out the Group’s lease accounting policy for all leases with the exception of leases with low-value (i.e. < $5,000) and short term of less than 12 months for which the Group has taken the exemption under the standard and are expensed to profit or loss as incurred.
(a)Lease assets
The Group recognizes right of use assets at the commencement date of the lease (i.e., the date the underlying asset is available for use under the contract). Right of use assets are measured at cost, less any accumulated depreciation and impairment losses, and adjusted for any remeasurement of lease liabilities. The cost of right of use assets includes the amount of lease liabilities recognized, initial direct costs incurred, and lease payments made at or before the commencement date (which do not form part of the lease liability value at the commencement date). Right of use assets are depreciated on a straight-line basis over the shorter of their estimated useful life and the lease term.
The right-of-use assets are tested for impairment in accordance with IAS 36 “Impairment of Assets”.
(b)Lease liabilities
At the commencement date of the lease, the Group recognizes lease liabilities measured at the present value of all remaining lease payments to be made over the lease term. The lease payments include fixed payments (including in-substance fixed payments where the contracts specify fixed or minimum uplifts) and variable lease payments that depend on an index or a rate.
The variable lease payments that do not depend on an index or a rate are recognized as an expense in the period in which the event or condition that triggers the payment occurs.
Due to the nature of our leased assets the interest rate implicit in the lease is usually not readily determinable, the Group therefore uses the incremental borrowing rate in calculating the present value of lease payments at the lease commencement date.
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IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
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The incremental borrowing rate is calculated using a series of inputs, including: a local currency cost of debt for each country based on local borrowing (or where not available, an inflation adjusted US$ cost of debt which encompasses the country specific adjustment), an adjustment for the duration of the referenced borrowings to arrive at an interest rate for a one-year facility, and an adjustment for the lease term based on local government, US or Eurozone bond yields, as appropriate in the context of each country’s debt markets.
The finance cost is charged to profit or loss over the lease period so as to produce a constant periodic rate of interest on the remaining balance of the liability for each period. In addition, the carrying amount of lease liabilities is remeasured if there is a modification, a change in the lease term or a change in the in-substance fixed lease payments.
The Group determines the lease term as the non-cancellable term of the lease, together with any periods covered by an option to extend the lease if it is reasonably certain to be exercised and any periods covered by an option to terminate the lease, if it is reasonably certain that the termination options will not be exercised.
The Group has the option under some of its leases to lease the assets for additional periods of up to 10 years. The Group applies judgement in evaluating whether it has a unilateral option to renew the lease for a further period and is reasonably certain to exercise the option to renew (note 3). That is, it considers all relevant factors that create an economic incentive for it to exercise the renewal. After the commencement date, the Group reassesses the lease term if there is a significant event or change in circumstances that is within its control and affects its ability to exercise (or not to exercise) the option to renew.
2.8Cost of sales
Cost of sales is mainly comprised of power generation costs, depreciation, tower repairs and maintenance costs, operational staff and costs and site rental costs.
2.9Administrative expenses
Administrative expenses are costs not directly related to provision of services to customers, but which support our business as a whole. These overhead expenses primarily consist of administrative staff costs (including key management compensation), office rent and related property expenses, insurance, travel costs, professional fees, depreciation and amortization of administrative assets, net (gain)/loss on disposal of property, plant and equipment and other sundry costs.
Administrative expenses also includes other corporate overhead expenses related to the Group’s acquisition efforts and costs associated with new business initiatives.
2.10Other income
Other income includes proceeds from insurance claims and the remeasurement of contingent consideration arising from acquisitions.
2.11Interest income
Interest income is recognized in profit or loss and is calculated using the effective interest method as set out in IFRS 9.
2.12Property, plant and equipment
These are mainly towers and towers equipment, fiber telecommunications network cables and equipment, land and buildings, furniture and office equipment, motor vehicles and capital work in progress that are used directly by the Group in the provision of services to customers, or for administrative purposes. The assets are carried at historical cost less accumulated depreciation and accumulated impairment losses. Historical cost includes expenditure that is directly attributable to the acquisition of the assets including amounts related to the cost of future decommissioning and site restoration obligations.
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IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
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Subsequent costs are included in the asset’s carrying amount or recognized as a separate asset, as appropriate, only when it is probable that future economic benefits associated with the asset will flow to the Group and the cost can be measured reliably.
The carrying amount of the replaced asset is derecognized. All other repairs and maintenance are charged to profit or loss during the financial period in which they are incurred.
Freehold land is not depreciated. Depreciation on other assets is calculated using the straight-line method to allocate their cost to their residual values over their estimated useful lives, as follows:
Towers and tower equipment Base station towers (including civil costs and overheads) |
|
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• Base station equipment (including civil costs and overheads) |
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10-20 years |
• Base station equipment (other equipment) |
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15 years |
• Base station equipment (rectifier and solar power) |
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10 years |
• Base station equipment (alarm and battery) |
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3-5 years |
• Base station equipment (generator & generator overhaul) |
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1-3 years |
• Base station equipment (base transmission equipment) |
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8-10 years |
Fiber assets |
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• Fixed line network equipment (including civil works, duct system, cable system and survey costs) |
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25 years |
• Outdoor cabinet |
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10 years |
Land and buildings, furniture and office equipment, and motor vehicles |
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• Office complex |
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40 years |
• Furniture and office equipment |
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3 years |
• Motor vehicles |
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4 years |
Asset residual values and useful lives are reviewed and adjusted if appropriate, at the end of each reporting period. Where an indication of impairment exists, an asset’s carrying amount is written down immediately to its recoverable amount if the asset’s carrying amount is greater than its estimated recoverable amount. The gain or loss arising on the disposal or retirement of an asset is determined as the difference between the sales proceeds and the carrying amount of the asset and is recognized in profit or loss for the period. The Group assesses its property, plant and equipment for possible impairment if there are events or changes in circumstances that indicate that carrying values of the assets may not be recoverable, or at least at the end of every reporting period. Such indicators could include changes in the Group’s business plans, changes in diesel prices, evidence of physical damage and technological changes and impacts of obsolescence including those driven by climate change.
2.13Intangible assets and goodwill
Goodwill arises on the acquisition of businesses and represents the excess of the consideration transferred, the amount of any non-controlling interest in the acquiree and the acquisition date fair value of any previous equity interest in the acquiree over the fair value of the identifiable net assets acquired. If the total of consideration transferred, non-controlling interest recognized and previously held interest measured at fair value is less than the fair value of the net assets of the subsidiary acquired, in the case of a bargain purchase, the difference is recognized directly in profit or loss.
For the purpose of impairment testing, goodwill acquired in a business combination is allocated to each of the cash-generating units (“CGUs”), or groups of CGUs, that is expected to benefit from the synergies of the combination. Each unit or group of units to which the goodwill is allocated represents the lowest level within the entity at which the goodwill is monitored for internal management purposes. Goodwill is monitored at or below the operating segment level. Goodwill impairment reviews are undertaken annually or more frequently if events or changes in circumstances indicate a potential impairment. The carrying value of the CGU containing the goodwill is compared to the recoverable amount, which is the higher of value in use and the fair value less costs of disposal. Any impairment is recognized immediately as an expense and is not subsequently reversed.
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IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
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(a)Network and customer related intangible assets
Network related intangible assets represent future income from leasing excess tower capacity to new tenants. Customer related intangible assets represent customer contracts and relationships. Network and customer related intangible assets acquired in a business combination are recognized at fair value at the acquisition date. Network and customer-related intangible assets have a finite useful life and are carried at cost less accumulated amortization. Amortization is calculated using the straight-line method to allocate the cost of network and customer related intangible assets over their estimated useful lives of 14-35 years (2022: 14-34 years, 2021: 14-26 years) and 5-41 years (2022: 5-41 years, 2021: 5-37 years) respectively. The remaining amortization period for network and customer related assets are between 3-32 years (2022: 4-33 years, 2021: 5-26 years) and 19-39 years (2022: 20-40 years, 2021: 21-36 years) respectively.
(b)Licenses
Separately acquired licenses are shown at historical cost. Licenses acquired in a business combination are recognized at fair value at the acquisition date. Licenses have a finite useful life and are carried at cost less accumulated amortization. Amortization is calculated using the straight-line method over their estimated useful lives of 3-15 years (2022: 3-15 years, 2021: 3-15 years).
(c)Computer software
Costs associated with maintaining computer software programs are recognized as expenses as incurred. Acquired computer software licenses are capitalized at the cost incurred to acquire and bring into use the software. Amortization is calculated using the straight-line method over their estimated useful lives of three to five years.
2.14Impairment of non-financial assets
Goodwill and intangible assets that have an indefinite useful life are not subject to amortization and are tested annually for impairment, or more frequently if events or changes in circumstances indicate that they might be impaired (note 3). Other assets are tested for impairment whenever events or changes in circumstances indicate that the carrying amount may not be recoverable. An impairment loss is recognized for the amount by which the asset’s carrying amount exceeds its recoverable amount. The recoverable amount is the higher of an asset’s fair value less costs of disposal and its value in use. For the purposes of assessing impairment, assets are grouped at the lowest levels for which there are separately identifiable cash inflows which are largely independent of the cash inflows from other assets or groups of assets (cash-generating units). Non-financial assets other than goodwill that suffered an impairment are reviewed for possible reversal of the impairment at the end of each reporting period.
2.15Inventories
Inventories are stated at the lower of cost and estimated net realizable value. Cost comprises direct materials costs and where applicable, direct labor costs and those overheads that have been incurred in bringing the inventories to their present location and condition. Cost is calculated using the first-in, first-out method. Net realizable value represents the estimated selling price less all estimated costs of completion and costs to be incurred in marketing, selling and distribution. If the carrying value exceeds net realizable amount, a write down is recognized. The write-down may be reversed in a subsequent period if the circumstances which caused it no longer exist. In other instances, where the net realizable value of an inventory item is not readily determinable, management assesses the age and the risk of obsolescence of such items in determining net realizable value of such items using an appropriate age/obsolescence factor model.
2.16Financial assets
2.16.1Classification
The Group classifies its financial assets in the following measurement categories:
| ● | those to be measured subsequently at fair value (either through other comprehensive income (OCI) or through profit or loss), and |
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IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
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| ● | those to be measured at amortized cost. |
The classification depends on the entity’s business model for managing the financial assets and the contractual terms of the cash flows. The Group reclassifies debt investments when and only when its business model for managing those assets changes.
2.16.2Recognition and derecognition
Regular way purchases and sales of financial assets are recognized on trade-date, the date on which the Group commits to purchase or sell the asset. Financial assets are derecognized when the rights to receive cash flows from the financial assets have expired or have been transferred and the Group has transferred substantially all the risks and rewards of ownership.
2.16.3Measurement
At initial recognition, the Group measures a financial asset at its fair value plus, in the case of a financial asset not at fair value through profit or loss (FVPL), transaction costs that are directly attributable to the acquisition of the financial asset. Transaction costs of financial assets carried at FVPL are expensed in profit or loss.
a)Debt instruments
Subsequent measurement of debt instruments depends on the Group’s business model for managing the asset and the cash flow characteristics of the asset. The Group measures its debt instruments at amortized cost as assets are held for collection of contractual cash flows where those cash flows represent solely payments of principal and interest. Interest income from these financial assets is included in finance income using the effective interest rate method. Any gain or loss arising on derecognition is recognized directly in profit or loss and presented in other gains/(losses) together with foreign exchange gains and losses. Impairment losses are presented as separate line item in the statement of income and other comprehensive income.
For the purpose of presentation in the statement of cash flows, cash and cash equivalents includes cash on hand, deposits held at call with financial institutions, other short term, highly liquid investments with original maturities of three months or less that are readily convertible to known amounts of cash and which are subject to an insignificant risk of changes in value, and bank overdrafts. Bank overdrafts are reflected within borrowings in current liabilities in the statement of financial position.
b)Equity instruments
The Group subsequently measures all equity investments at fair value. The Group has elected to present fair value gains and losses on equity investments in OCI. There is no subsequent reclassification of fair value gains and losses to profit or loss following the derecognition of the investment.
2.16.4Impairment
The Group adopted the simplified approach and evaluates each customer individually for the purpose of estimating the impairment at the reporting date rather than using a portfolio approach. The Group has limited history of losses and given the short duration of receivables, the Group uses the experienced credit judgement (ECJ) approach to estimate the impairment of trade receivables in accordance with the expected credit loss (ECL) requirement of IFRS 9.
The ECJ approach assesses the credit risk of the customer at the reporting date to evaluate the customer’s capacity to meet its contractual cash flow obligations in the near term and combines this with an evaluation of the impact of changes in economic and business conditions on the customer’s ability to pay.
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IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
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2.17Financial liabilities
2.17.1Classification
The Group’s financial liabilities are classified at amortized cost. Financial liabilities are recognized initially at fair value and inclusive of directly attributable transaction costs. The Group’s financial liabilities are borrowings and trade and other payables.
Borrowings
Borrowings are initially recognized at fair value, net of transaction costs incurred. Borrowings are subsequently measured at amortized cost. Any difference between the proceeds (net of transaction costs) and the redemption amount is recognized in the statement of income and other comprehensive income over the period of the borrowings using the effective interest method. Fees paid on the establishment of loan facilities are recognized as transaction costs of the loan to the extent that it is probable that some or all of the facility will be drawn down. In this case, the fee is deferred until the draw down occurs. To the extent there is no evidence that it is probable that some or all of the facility will be drawn down, the fee is capitalized as a prepayment for liquidity services and amortized over the period of the facility to which it relates.
A day one gain or loss on intercompany loans at a non-market interest rate is included in investments.
Borrowings are removed from the statement of financial position when the obligation specified in the contract is discharged, canceled or expired. The difference between the carrying amount of a financial liability that has been extinguished or transferred to another party and the consideration paid, including any non-cash assets transferred or liabilities assumed, is recognized in the statement of income and other comprehensive income as other income or finance costs. Where the terms of a financial liability are renegotiated and the entity issues equity instruments to a creditor to extinguish all or part of the liability (debt for equity swap), a gain or loss is recognized in the statement of income and other comprehensive income, which is measured as the difference between the carrying amount of the financial liability and the fair value of the equity instruments issued.
Borrowings are classified as current liabilities unless the Group has an unconditional right to defer settlement of the liability for at least 12 months after the reporting period.
2.18Derivative financial instruments
Derivatives are financial instruments that derive their value from an underlying price or index. A derivative instrument gives one party a contractual right to exchange financial assets and financial liabilities with another party under conditions that are potentially favorable or financial liabilities with another party under conditions that are potentially unfavorable. Derivatives are initially recognized at fair value on the date a derivative contract is entered into and are subsequently remeasured to their fair value at the end of each reporting period.
Where we have an obligation to purchase non-controlling interest that will be settled for a variable number of own shares, rather than cash, another financial asset, or a fixed number of shares, our policy is to treat this as a derivative transaction and measure it at fair value in the statement of income.
2.19Embedded derivatives
An embedded derivative is a component of a hybrid (combined) instrument that also includes a non-derivative host contract. An embedded derivative causes some or all of the cash flows that otherwise would be required by the contract to be modified according to a specified interest rate, financial instrument price, commodity price, foreign exchange rate, index of prices or rates or other variable (provided in the case of a non-financial variable that the variable is not specific to a party to the contract).
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IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
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An embedded derivative is only separated and reported at fair value with gains and losses being recognized in the statement of income and other comprehensive income when the following requirements are met:
| ● | where the economic characteristics and risks of the embedded derivative are not clearly and closely related to those of the host contract; |
| ● | the terms of the embedded derivative are the same as those of a stand-alone derivative; and |
| ● | the combined contract is not held for trading or designated at fair value through profit or loss. |
The Group’s listed bonds include embedded put and call features which are bifurcated at the time of issuance of the bonds.
The Group has analyzed the 2027 Notes issued in September 2019 along with the 2026 and 2028 Notes issued in November 2021 and has identified free standing call and put options embedded in the listed bonds that required separate valuation.
The Group employed valuation techniques commonly used by market participants to evaluate bonds with embedded options, including discounted cash flow and option pricing models, and makes maximum reference to market inputs. The techniques adopted include the major factors that market participants would consider in setting a price and are consistent with accepted economic methodologies for pricing financial instruments. The options are valued equivalent to an American Receiver Swaption under the Hull & White Model.
A significant portion of the Group’s contracted revenue pricing is denominated in US Dollars and the amount of local currency due is determined by reference to the US Dollar amount invoiced, translated at the spot rate or an average rate to the respective subsidiary. This represents an embedded foreign currency derivative in a host contract.
Management’s judgement is that where fees that are priced in US$ are translated to local currency at the time of billing using a liquid market exchange rate, derivatives are not bifurcated as at the time the contracts are entered into. They are considered closely related to the host contract since they are denominated in a currency that is commonly used in the regions that the Group operates in (US Dollar being a relatively stable and liquid currency that is commonly used for pricing in local business transactions and trade).
Where fees priced in US$ are translated to local currency at the time of billing using a fixed, pre-determined exchange rate, or an exchange rate which is not referenced to a liquid market exchange rate, derivatives are bifurcated at the time the contracts are entered into.
2.20Current and deferred income tax
(a)Deferred income tax
Deferred income tax is recognized in full, using the liability method, on all temporary differences arising between the tax bases of assets and liabilities and their carrying amounts in the financial statements. Deferred income tax is determined using tax rates (and laws) that have been enacted or substantively enacted by the end of the reporting period and are expected to apply when the related deferred income tax asset is realized or the deferred income tax liability is settled.
Deferred income tax liabilities are not recognized if they arise from initial recognition of goodwill and deferred income tax is not accounted for if it arises from initial recognition of an asset or liability, in a transaction other than a business combination that at the time of the transaction affects neither accounting nor taxable profit or loss.
Deferred income tax assets and liabilities are offset when there is a legally enforceable right to offset current tax assets against current tax liabilities and when the deferred income taxes assets and liabilities relate to income taxes levied by the same taxation authority on either the same taxable entity or different taxable entities where there is an intention to settle the balances on a net basis. Deferred income tax assets are recognized only to the extent that it is probable that future taxable profit will be available against which the temporary differences can be utilized.
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IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
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(b)Current income tax
Current income tax is recognized in profit or loss, except to the extent that it relates to items recognized in other comprehensive income or directly in equity. In this case, the tax is also recognized in other comprehensive income or directly in equity, respectively.
The current income tax charge is calculated on the basis of the tax laws enacted or substantively enacted by the end of the reporting period in the countries where the Company and its subsidiaries operate and generate taxable income. Management periodically evaluates positions taken in tax returns with respect to situations in which applicable tax regulation is subject to interpretation and considers whether it is probable that a taxation authority will accept an uncertain tax treatment. The Group measures its tax balances either based on the most likely amount or the expected value, depending on which method provides a better prediction of the resolution of the uncertainty.
2.21Employee benefits
(a)Defined contribution schemes
The Group operates a number of defined contribution plans which are funded by contributions from the Group and the employees based on the law ruling in each country. The amounts contributed by the Group is recognized as employee benefit expenses and are charged to profit or loss in the period to which the contributions relate. The Group has no further payment obligation once the contributions have been paid. Prepaid contributions are recognized as an asset to the extent that a cash refund or a reduction in the future payment is available.
(b)Short-term employee benefits
Short term employee benefit obligations are measured on an undiscounted basis and are expensed as the related service is provided. A liability is recognized for the amount expected to be paid if the Group has a present legal or constructive obligation to pay this amount as a result of past service provided by the employee, and the obligation can be estimated reliably.
(c)Other long-term employee benefits
The Group’s net obligation in respect of long-term employee benefits is the amount of future benefit that employees have earned in return for their service in the current and prior periods. That benefit is discounted to determine its present value. Remeasurements are recognized in the statement of income and other comprehensive income in the period in which they arise.
2.22Share-based payments
The Group operates a number of equity settled, share-based compensation plans, under which the entity receives services from employees as consideration for equity instruments (options) of the Company. Equity settled share-based payment obligations granted to employees are measured at their fair value (at the date of grant or the date of amendment in the case of modification of terms) and the fair value is recognized as an expense in profit or loss, with a corresponding increase in equity, over the vesting period of the awards. The amount recognized as an expense is adjusted to reflect the number of awards for which the related service and non-market performance conditions (for example, profitability, sales growth targets are expected to be met), such that the amount ultimately recognized is based on the number of awards that meet the related service and non-market performance conditions at the vesting date (note 3).
In the event of a modification of the terms of the share-based instruments, if the fair value of the new amended instruments is greater than the fair value of the original instruments as at the modification date, then for options vested at the modification date, the incremental fair value is recognized in profit or loss immediately and for unvested options, the incremental amount is recognized in profit or loss over the remaining vesting period.
In prior periods, and up to the 10 July 2019, the share-based compensation plans operated by the Group were classified and accounted for as cash-settled instruments. Options were measured at their fair value (at the date of grant) and the fair value was recognized as an expense in profit or loss with a corresponding liability recognized.
F-22
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Cash settled share-based payment liabilities were remeasured at the end of each reporting period up to the date of settlement, with any changes in fair value recognized in profit or loss. At the end of each reporting period and up to 10 July 2019, the Group revised its estimates of the number of options that were expected to vest based on the non-market vesting conditions and service conditions and recognized the impact of the revision to original estimates, if any, in profit or loss, with a corresponding adjustment to liability. Refer to note 28 for further information.
2.23Decommissioning and site restoration obligations
The Group makes provision for any future cost of decommissioning of its telecommunication towers where required by regulation or land lease terms. These costs are expected to be incurred within a period of up to 20 years depending on the term of the leasehold. The Group estimates this provision using existing technology at current prices as quoted by decommissioning experts, escalated at the relevant inflation factor. The inflated decommissioning provision is subsequently discounted to present value using the Group’s incremental borrowing rate for borrowings over the expected term of the leasehold. The timing of each decommissioning will depend on the term of the lease and whether or not the lessor intends to renew the rental contract. A corresponding amount is recognized as part of property, plant and equipment. This is subsequently depreciated as part of the tower. Other than the unwinding discount on the provision, any change in the present value of the estimated expenditure is reflected as an adjustment to the provision and the corresponding item of property, plant and equipment.
3.Critical accounting estimates and judgements
The preparation of financial statements requires management to make certain judgements, accounting estimates and assumptions that affect the amounts reported for the assets and liabilities as at the end of the reporting period and the amounts reported for revenues and expenses during the year. The nature of the estimation means that actual outcomes could differ from those estimates. The key sources of judgment and estimation uncertainty that have a significant risk of causing material adjustments to the carrying amounts of assets and liabilities are discussed below.
In preparing these consolidated financial statements, the significant judgements made by management in applying the Group’s accounting policies and the key sources of estimation uncertainty were the same as those that applied to the consolidated financial statements for the year ended December 31, 2022.
F-23
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
(a)Key accounting judgements
3.1Going Concern
Global financial markets have seen higher interest rates and inflation through 2023, including further devaluations of the Nigerian Naira in June 2023 and end-January 2024. In addition, ongoing geopolitical conflicts and wars have impacted global diesel prices as well as the supply chain for raw materials such as steel and for equipment, including batteries.
The below table outlines Management’s assessment of and response to the main risks arising from the current global macro-economic conditions. These risks inherently impact the significant judgements and estimates made by management.
|
|
|
|---|---|---|
|
Assessment |
Risk discussion and response |
Revenue and profitability |
· Limited impact on revenue collections thus far. · Customers continue to perform, and we have not experienced significant deterioration in payments. |
· The Group has long-term revenue contracts with its customers amounting to $12.3 billion in contracted revenue. · Our ability to collect revenue from our customers is impacted by our customers’ ability to generate and collect revenues from their operations. Our customers have, in the main, seen an increased demand for their services. · The impact on collections has thus far been limited and the Group remains in constant conversation with customers regarding their liquidity and ability to meet their obligations. · The Group regularly reviews measures for cost savings whilst maintaining its ability to operate effectively and towards strategic goals. · The Group has continued to invest in capital expenditure which supports revenue growth. The Group will make targeted investments in capital expenditure relating to revenue growth during 2024. · Customer revenue contracts include FX reset functions, including on Nigerian Naira contracts. |
Liquidity |
· Sufficient liquidity is available. · No current impact on going concern. |
· The Group has cash and cash equivalents of $294 million as at December 31, 2023, and undrawn facilities at IHS Holding level of $430 million. · Management has assessed current cash reserves and the availability of undrawn facilities and continues to monitor available liquidity in the context of ongoing operational requirements and planned capital expenditure. · In the context of current commitments and available liquidity, management believes that the going concern assumption remains appropriate. · All of the Group’s operations are cash generative. |
Access to USD |
· Moderate risk due to decreased availability. |
· While there has been a reduction in US Dollar liquidity in the Nigerian market, we were still able to source US Dollars locally to fund our US Dollar requirements during the year. |
Internal controls |
· Minimal impact to date. |
· Our IT team monitors the increased risk of fraud, data or security breaches, loss of data and the potential for other cyber-related attacks and utilises security measures to mitigate such risks. |
Supply chain |
· Moderate risk due to delays. |
· The Group works closely with suppliers and contractors to ensure availability of supplies on site, especially diesel supplies which are critical to many of our operations. · Regular maintenance of our towers continues while observing strict safety guidelines for our employees and our suppliers and contractors. |
F-24
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Due to the uncertainty in the NAFEM exchange rate to the US Dollar we will continue to assess the situation. As part of their regular assessment of the Group’s liquidity and financing position, the Directors have prepared detailed forecasts for a period which extends beyond 12 months after the date of approval of these financial statements. In assessing the forecasts, the Directors have considered:
| ● | the current economic conditions in the operating markets and how that impacts trading; |
| ● | the impact of macroeconomic factors, particularly interest rates and foreign exchange rates; |
| ● | the status of the Group’s financial arrangements (see also note 19); |
| ● | mitigating actions available should business activities fall behind current expectations; and |
| ● | additional sensitivity analysis under a stressed scenario to assess the impact of a severe but plausible downside case. |
Whilst inherently uncertain, and we expect some impact to our operations and performance, we currently do not believe that the ongoing uncertainty with the NAFEM exchange rate will directly have a material adverse effect on our financial condition or liquidity for the foreseeable future, given the contractual revenue resets. Having carefully considered this and the other factors noted above, the Directors have a reasonable expectation that the Group and the Company have adequate resources to continue in operational existence for at least 12 months from the date of issuance of these financial statements and to operate within the covenant levels of its current debt facilities. The Directors therefore continue to consider it appropriate to adopt the going concern basis of accounting in preparing the financial statements.
3.2Determining the lease term of contracts with renewal options
The Group determines the lease term as the non-cancellable term of the lease, together with any periods covered by an option to extend the lease if it is reasonably certain to be exercised and any periods covered by an option to terminate the lease, if it is reasonably certain that the termination options will not be exercised.
The Group has the option under some of its leases to lease the assets for additional periods of up to 10 years. The Group applies judgement in evaluating whether it has a unilateral option to renew the lease for a further period or is otherwise provided that option under the laws governing the lease agreement and is reasonably certain to exercise the option to renew. That is, it considers all relevant factors that create an economic incentive for it to exercise the renewal or for the landlord to accept a renewal, including the nature of the underlying asset, the availability of a similar asset in a similar location, and the expected business impact or relocating its towers. After the commencement date, the Group reassesses the lease term if there is a significant event or change in circumstances that is within its control and affects its intention or ability to exercise (or not to exercise) the option to renew.
(b)Key accounting estimates
3.3Impairment of non-financial assets
The Group assesses its non-financial assets including property, plant and equipment, goodwill, and other intangible assets for possible impairment if there are events or changes in circumstances that indicate that carrying values of the assets may not be recoverable, or at least at the end of every reporting period. Such indicators could include changes in the Group’s business plans, changes in diesel prices, evidence of physical damage and technological changes and impacts of obsolescence. If there are rapid changes in technology of the existing communications infrastructure, the Group may need to recognize significant impairment charges.
The Group tests annually whether goodwill has suffered any impairment, in accordance with the accounting policy stated in note 2.13.
F-25
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
An impairment loss is recognized for the amount by which the asset’s carrying amount exceeds its recoverable amount. The recoverable amount is the higher of an asset’s fair value less costs of disposal and its value in use. For the purposes of assessing impairment, assets are grouped at the lowest levels for which there are separately identifiable cash flows. Refer to note 15 for Goodwill and intangible assets impairment considerations.
The assessment for impairment entails comparing the carrying value of the cash generating unit, or group of cash generating units, with its recoverable amount, that is, the higher of the value in use and the fair value less costs of disposal. Value in use is determined on the basis of discounted estimated future net cash flows. Fair value less costs of disposal is determined on the basis of the income approach, discounting estimated future net cash flows that reflects current market expectations. Determination as to whether and how much an asset is impaired involves management estimates on highly uncertain matters such as future revenue (taking into account tenancy rates for tower businesses and homes passed and homes connected for the fiber business), and the direct effect these have on gross profit margins in the initial five-year forecast period, discount rates, terminal growth rates and cost related to the disposal of a business.
In determining value in use the Group makes estimates and assumptions concerning the future. The assumptions adopted in the computation of the value in use are considered reasonable to the circumstance of each CGU. The resulting accounting estimates will, by definition, seldom equal the related actual results. Such estimates and assumptions are continually evaluated and are based on historical experience and other factors, including expectations of future events that are believed to be reasonable under the circumstances. Refer to the sensitivity analysis in note 15.
3.4Revenue recognition – Variable consideration
Initial recognition of revenue is estimated based on an assessment of the recoverability of revenue taking into account our contractual rights to consideration, our exposure to our customer’s credit risk and our practice of managing credit risk exposure through the occasional negotiation of price concessions with customers. Only amounts expected to be recovered at the point of initial recognition are recognized in revenue, and the remainder is considered variable consideration (see note 2.5(a)). Recognition of amounts not expected to be recovered is contingent upon the receipt of funds from the customer. The assessment of the amounts expected to be recovered is closely aligned with the assessed credit risk of the customer, determined as part of the assessment of expected credit losses made in accordance with the Group’s IFRS 9 expected credit loss policy as described in note 2.16.4.
A 10-percentage point change in management’s estimate of the amount of variable consideration that will eventually be received would alter revenue recognized by approximately $25.5 million (2022: $17.4 million, 2021: $16.8 million).
3.5Assessment of appropriate foreign exchange rate
In mid-June 2023, the Central Bank of Nigeria announced the unification of all segments of the foreign exchange market by replacing the old regime of multiple exchange rate “windows” for different purposes with, in effect, a market rate. The unification of the Nigeria foreign exchange market was aimed at eliminating multiple “windows” and to allow foreign exchange transactions to be determined by market forces via a single I&E window (which was subsequently renamed NAFEM in October 2023). The Group uses the USD/NGN rate published by Bloomberg, which is approximately aligned to the NAFEM rate, for the translation of USD transactions and denominated balances in the Nigerian subsidiaries and also for consolidation purposes.
4.Introduction and overview of Group’s risk management
The Group’s activities expose it to a variety of financial risks including market risk (foreign exchange risk and interest rate risk), credit risk and liquidity risk. The Board of Directors has overall responsibility for the establishment and oversight of the Group’s risk management framework. The Group’s Executive Committee is responsible for developing and monitoring the Group’s risk management policies.
The Group’s risk management policies are established to identify and analyze the risks faced by the Group, to establish appropriate risk appetite and controls, and to monitor risks and adherence to our risk appetite. Risk management policies and systems are reviewed regularly by the executive management to reflect changes in market conditions and the Group’s activities. The Group, through its training and management standards and procedures, aims to develop a disciplined and constructive control environment in which all employees understand their roles and obligations.
F-26
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
The Board, through the Audit Committee, oversees how management monitors compliance with the Group’s risk management policies and procedures and reviews the adequacy of the risk management framework in relation to the risks faced by the Group. The Board is supported by various management functions that check and undertake both regular and ad hoc reviews of compliance with established controls and procedures.
(a)Derivative instruments
Derivatives are only used for economic hedging purposes and not as speculative investments. Derivatives do not meet the criteria for hedge accounting and are therefore classified as financial instruments through fair value through profit or loss.
| ● | Non-deliverable forwards (NDFs) — The calculation of an NDF fair value is based on the difference between the contracted exchange rate and the anticipated spot exchange rate at the relevant period. The rate applied to represent the anticipated spot exchange rate requires judgement given the limited market liquidity in Nigeria. The Group has determined that the spot exchange rate obtained from Bloomberg which is approximately aligned to NAFEM is the most appropriate rate. The gain or loss at the settlement date is calculated by taking the difference between the agreed upon contract exchange rate (NGN/USD) and the spot rate at the time of settlement, for an agreed upon notional amount of funds. |
| ● | Embedded options within listed bonds — The bonds issued by IHS Netherlands Holdco B.V. in September 2019 and the bonds issued by IHS Holding Limited in November 2021 have embedded options which allow early redemption at the option of the issuer and holder upon the occurrence of specified events. These are accounted for as derivatives at fair value through profit or loss. |
| ● | Embedded derivatives within revenue contracts — The embedded derivatives within revenue contracts represent the fair value of the US$ linked components of the Group’s revenue contracts with customers, where such US$ linked components are translated to local currency at the time of billing using a fixed, pre-determined exchange rate or an exchange rate which is not referenced to a liquid market exchange rate. These are accounted for as derivatives at fair value through profit or loss. |
(b)Market risk
Market risk is the risk that changes in market prices, such as foreign exchange rates and interest rates will affect the Group’s income or the value of its holdings of financial instruments. The objective of market risk management is to manage and control market risk exposures within acceptable parameters, while optimizing the return.
The Group manages market risks by keeping costs low through various cost optimization programs. Moreover, market developments are monitored and discussed regularly, and mitigating actions are taken where necessary.
(i)Foreign exchange risk
The Group operates internationally and is exposed to foreign exchange risk arising from currency exposures other than the US Dollar. Foreign exchange risk arises from future commercial transactions, recognized assets and liabilities and net investments in foreign operations.
The Group is exposed to risks resulting from fluctuations in foreign currency exchange rates. A material change in the value of any such foreign currency could result in a material adverse effect on the Group’s cash flow and future profits. The Group is exposed to foreign exchange risk to the extent that balances and transactions are denominated in a currency other than the functional currency in which they are measured.
In managing foreign exchange risk, the Group aims to reduce the impact of short-term fluctuations on earnings. The Group has no export sales, but it has customers that are either contracted using fees quoted in US Dollars or other foreign currencies, but with foreign exchange indexation. The Group’s significant exposure to currency risk relates to its loan facilities that are mainly in foreign currencies. The Group manages foreign exchange risk through the use of derivative financial instruments such as currency swaps and forward contracts. The Group monitors the movement in the currency rates on an ongoing basis.
F-27
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Currency exposure arising from assets and liabilities denominated in foreign currencies is managed primarily by setting limits on the percentage of net assets that may be invested in such deposits.
Sensitivity analysis
The table below shows the impact on the Group’s loss if the exchange rate between the following currencies to US Dollars had increased or decreased, with all other variables held constant. The rate of change was determined by an assessment of a reasonable or probable change in the exchange rate being applied as at December 31. The impact is based on external and intercompany loans.
|
|
|
|
Effect on |
|
Effect on |
|
Effect on |
|
Effect on |
|
Effect on |
|
Effect on |
|
|
|
Effect on |
|
Rwandan |
|
Nigerian |
|
Zambian |
|
South Africa |
|
Brazilian |
|
Kuwaiti |
|
|
|
Euro |
|
Franc |
|
Naira |
|
Kwacha |
|
Rand |
|
Real |
|
Dinar |
|
|
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
2023 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rate of change |
|
10 |
% |
10 |
% |
10 |
% |
10 |
% |
10 |
% |
10 |
% |
10 |
% |
Effect of US Dollar weakening on loss |
|
(21,911) |
|
(1,311) |
|
(255,956) |
|
(16,038) |
|
(3,996) |
|
— |
|
(1,047) |
|
Effect of US Dollar strengthening on loss |
|
21,911 |
|
1,311 |
|
255,956 |
|
16,038 |
|
3,996 |
|
— |
|
1,047 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rate of change |
|
7 |
% |
7 |
% |
7 |
% |
7 |
% |
7 |
% |
7 |
% |
7 |
% |
Effect of US Dollar weakening on loss |
|
(13,153) |
|
(4,402) |
|
(165,880) |
|
(15,528) |
|
(2,809) |
|
(18,898) |
|
(648) |
|
Effect of US Dollar strengthening on loss |
|
13,153 |
|
4,402 |
|
165,880 |
|
15,528 |
|
2,809 |
|
18,898 |
|
648 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2021 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rate of change |
|
5 |
% |
5 |
% |
5 |
% |
5 |
% |
n/a |
|
5 |
% |
5 |
% |
Effect of US Dollar weakening on loss |
|
(15,726) |
|
(3,284) |
|
(106,595) |
|
(11,078) |
|
— |
|
(15,502) |
|
(424) |
|
Effect of US Dollar strengthening on loss |
|
15,726 |
|
3,284 |
|
106,595 |
|
11,078 |
|
— |
|
15,502 |
|
424 |
|
This analysis excludes the natural hedging arising from contracts with customers in the Nigeria, Zambia and Rwanda operations, which are either wholly or partly linked to the US Dollar exchange rate. It is, however, impracticable to incorporate the impact of this US Dollar component in the above analysis due to the complexity of the contracts and the timing of any devaluation event.
The Group is exposed to foreign exchange exposure that arises on intercompany loans denominated in US Dollars and Euro at a subsidiary level as a result of loan revaluations in local functional currency at period ends. The balances, as translated into US$, of the foreign denominated intercompany loans in the local books of the subsidiaries are:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nigerian |
|
Rwandan |
|
Zambian |
|
South African |
|
Brazilian |
|
Kuwaiti |
|
|
|
|
Naira |
|
Franc |
|
Kwacha |
|
Rand |
|
Real |
|
Dinar |
|
US Dollar |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
2023 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US Dollar loan |
|
2,240,110 |
|
13,108 |
|
79,081 |
|
39,956 |
|
— |
|
10,473 |
|
— |
Euro loan |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
214,271 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US Dollar loan |
|
2,172,230 |
|
62,886 |
|
127,235 |
|
40,132 |
|
269,976 |
|
9,261 |
|
— |
Euro loan |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
244,194 |
F-28
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
The summary of quantitative data about the Group’s exposure to foreign exchange risk (balances excluding inter-company balances, and in currencies other than the local functional currency) is as follows:
|
|
2023 |
|
2022 |
|
|
$’000 |
|
$’000 |
|
|
|
|
|
Trade receivables |
|
7,330 |
|
7,356 |
Cash and cash equivalents |
|
50,132 |
|
45,234 |
Trade payables |
|
(44,835) |
|
(69,480) |
Borrowings |
|
(405,592) |
|
(306,291) |
Net exposure |
|
(392,965) |
|
(323,181) |
(ii)Interest rate risk
The Group’s main interest rate risk arises from long term borrowings with variable rates, which expose the Group to cash flow interest rate risk.
The Group’s fixed rate borrowings and receivables are carried at amortized cost. They are therefore not subject to interest rate risk as defined in IFRS 7, since neither the carrying amount nor the future cash flows will fluctuate because of a change in market interest rates. The Group manages interest rate risk through the use of derivative financial instruments such as interest rate caps or by issuing fixed rate debt.
The table below shows the impact on the Group’s post tax loss if the interest rates increased or decreased by 1% (2022: 1%, 2021: 1%).
|
|
2023 |
|
2022 |
|
2021 |
|
|
$'000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Effect of 1% (2022 and 2021: 1%) increase on post tax loss |
|
11,412 |
|
6,345 |
|
6,343 |
Effect of 1% (2022 and 2021: 1%) decrease on post tax loss |
|
(11,423) |
|
(6,846) |
|
(6,079) |
(c)Credit risk
Credit risk is the risk of financial loss to the Group if a customer or counterparty to a financial instrument fails to meet its contractual obligations. Credit risk arises from cash and cash equivalents, derivative financial instruments and deposits with banks and financial institutions, as well as credit exposures to customers, including outstanding receivables and committed transactions. Credit risk is managed on a Group basis. The Group accounts for the write-off of a trade receivable when a specific customer is assessed to be uncollectible, based on a review of their specific trading circumstances, credit quality and continuing poor payment performance of the specific customer.
The carrying amount of financial assets represents the maximum credit exposure. The maximum exposure to credit risk at the end of the reporting period was:
|
|
2023 |
|
2022 |
|
|
$’000 |
|
$'000 |
|
|
|
|
|
Other receivables (note 19) |
|
317,452 |
|
387,019 |
Derivative financial instrument assets (note 18) |
|
2,105 |
|
6,121 |
Trade receivables (net) (note 19) |
|
212,323 |
|
211,025 |
Cash and cash equivalents (note 20) |
|
293,823 |
|
514,078 |
|
|
825,703 |
|
1,118,243 |
No impairment allowance is recorded at December 31, 2023 in respect of cash and cash equivalents and other receivables (2022: $Nil). Derivative financial instruments are carried at fair value through profit or loss. Any fair value gains or losses are recognized in profit or loss during the period.
F-29
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Credit ratings
The Group works with approved banks and financial institutions which it believes are financially sound, including by reference to their external ratings.
The credit ratings of the Group’s other receivables at December 31, 2023 and 2022 are based on publicly reported Fitch ratings:
|
|
2023 |
|
2022 |
|
|
$’000 |
|
$'000 |
Other receivables |
|
|
|
|
AAA |
|
22,485 |
|
27,820 |
A |
|
— |
|
63 |
B |
|
259,702 |
|
335,600 |
Not rated |
|
35,265 |
|
23,536 |
|
|
317,452 |
|
387,019 |
Refer to note 18 and note 20 for the credit ratings of derivative financial instrument assets and cash and cash equivalents respectively.
The finance department assesses the credit quality of a customer, taking into account its financial position, past experience and other factors. The compliance with credit limits by customers is regularly monitored by line management.
The Group utilizes data analysis and market knowledge to determine the concentration of its risks by reference to independent and internal ratings of customers. The assessment of the concentration risk is consistent with the overall risk appetite as established by the Group.
The Group’s credit concentration is based on internal ratings. The finance department classifies customers as first tier and second tier customers based on sales revenue from each customer during the period. First tier customers are the two to five customers that contributed 80% and above of total revenue and represent the major mobile network operators in our markets while second tier customers are the customers that contributed 20% and below of total revenue and typically represent ISPs or mobile operators with smaller or regional network footprints.
|
|
Internal Credit rating |
|
|
||
|
|
First tier |
|
Second tier |
|
Total |
|
|
$'000 |
|
$'000 |
|
$'000 |
2023 |
|
|
|
|
|
|
Accrued Revenue |
|
86,683 |
|
99 |
|
86,782 |
Not due |
|
57,540 |
|
4,031 |
|
61,571 |
0-30 days |
|
17,632 |
|
2,240 |
|
19,872 |
31-60 days |
|
15,072 |
|
4,532 |
|
19,604 |
61-90 days |
|
1,128 |
|
4,213 |
|
5,341 |
Over 90 days |
|
19,213 |
|
21,145 |
|
40,358 |
Gross trade receivables |
|
197,268 |
|
36,260 |
|
233,528 |
Impairment allowance |
|
(8,647) |
|
(12,558) |
|
(21,205) |
Net trade receivables |
|
188,621 |
|
23,702 |
|
212,323 |
F-30
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
|
|
Internal Credit rating |
|
|
||
|
|
First tier |
|
Second tier |
|
Total |
|
|
$'000 |
|
$'000 |
|
$'000 |
2022 |
|
|
|
|
|
|
Accrued Revenue |
|
84,975 |
|
156 |
|
85,131 |
Not due |
|
58,169 |
|
3,128 |
|
61,297 |
0-30 days |
|
22,581 |
|
2,267 |
|
24,848 |
31-60 days |
|
11,233 |
|
3,269 |
|
14,502 |
61-90 days |
|
4,411 |
|
3,902 |
|
8,313 |
Over 90 days |
|
11,748 |
|
30,551 |
|
42,299 |
Gross trade receivables |
|
193,117 |
|
43,273 |
|
236,390 |
Impairment allowance |
|
(2,597) |
|
(22,768) |
|
(25,365) |
Net trade receivables |
|
190,520 |
|
20,505 |
|
211,025 |
Impairment allowances, derived in accordance with the policy described in note 2.16.4, predominantly relate to provisions representing a significant proportion of the aged balances due from a small number of customers with poor payment history.
The movement in the allowance for impairment in respect of trade receivables during the year was as follows:
|
|
2023 |
|
2022 |
|
2021 |
|
|
$'000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Opening balance |
|
25,365 |
|
31,063 |
|
133,800 |
Increase/(decrease) in impairment provision |
|
7,202 |
|
(4,446) |
|
(34,031) |
Written-off during the year |
|
(2,597) |
|
(312) |
|
(67,053) |
Foreign exchange |
|
(8,765) |
|
(940) |
|
(1,653) |
|
|
21,205 |
|
25,365 |
|
31,063 |
(d)Liquidity risk
Liquidity risk is the risk that the Group will encounter difficulty in meeting the obligations associated with its financial liabilities that are settled by delivering cash or another financial asset. The Group’s approach to managing liquidity is to ensure, as far as possible, that it will always have sufficient liquidity to meet its liabilities when due, under both normal and stressed conditions, without incurring unacceptable losses or risking damage to the Group’s reputation.
The Group has a clear focus on ensuring sufficient access to capital to finance growth and to refinance maturing debt obligations. As part of the liquidity management process, the Group has various credit arrangements with some banks which can be utilized to meet its liquidity requirements. At the end of the reporting period, the Group had $3.2 billion (2022: $3.1 billion, 2021: $2.7 billion) utilized of $3.7 billion (2022: $3.7 billion, 2021: $3.5 billion) credit facilities with its financiers.
Typically, the credit terms with customers are more favorable compared to payment terms from its vendors in order to help provide sufficient cash on demand to meet expected operational expenses, including the servicing of financial obligations. This excludes the potential impact of extreme circumstances that cannot reasonably be predicted, such as natural disasters.
F-31
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
The table below analyzes the Group’s financial liabilities including estimated interest payments and excluding the impact of netting agreements into relevant maturity groupings based on the remaining period from the end of the reporting period to the contractual maturity date. The amounts disclosed in the table are the contractual undiscounted cash flows.
|
|
Within 1 year |
|
2 - 3 years |
|
4 - 5 years |
|
Over 5 years |
|
Total |
|
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
2023 |
|
|
|
|
|
|
|
|
|
|
Trade payables (note 21) |
|
330,622 |
|
— |
|
— |
|
— |
|
330,622 |
Other payables (note 21) |
|
110,706 |
|
4,629 |
|
— |
|
— |
|
115,335 |
Payroll and other related statutory liabilities (note 21) |
|
46,282 |
|
— |
|
— |
|
— |
|
46,282 |
Lease liabilities |
|
101,709 |
|
193,434 |
|
180,895 |
|
705,421 |
|
1,181,459 |
Bank and bond borrowings |
|
670,261 |
|
1,578,329 |
|
1,950,750 |
|
303,397 |
|
4,502,737 |
|
|
1,259,580 |
|
1,776,392 |
|
2,131,645 |
|
1,008,818 |
|
6,176,435 |
2022 |
|
|
|
|
|
|
|
|
|
|
Trade payables (note 21) |
|
442,959 |
|
— |
|
— |
|
— |
|
442,959 |
Other payables (note 21) |
|
88,676 |
|
1,459 |
|
— |
|
— |
|
90,135 |
Payroll and other related statutory liabilities (note 21) |
|
45,331 |
|
— |
|
— |
|
— |
|
45,331 |
Lease liabilities |
|
92,417 |
|
179,930 |
|
168,231 |
|
667,954 |
|
1,108,532 |
Bank and bond borrowings |
|
649,110 |
|
1,051,663 |
|
1,922,606 |
|
753,813 |
|
4,377,192 |
|
|
1,318,493 |
|
1,233,052 |
|
2,090,837 |
|
1,421,767 |
|
6,064,149 |
(e)Capital risk management
The Group’s objectives when managing capital are to safeguard its ability to continue as a going concern in order to provide returns for shareholders and benefits for other stakeholders, and to maintain an optimal capital structure to reduce the cost of capital.
In order to maintain or adjust the capital structure, the Group may adjust the amount of dividends paid to shareholders, return capital to shareholders, issue new shares or sell assets to reduce debt.
The Group monitors capital on the basis of the leverage ratio to optimize market pricing, such that Net Debt (loan principal outstanding less cash and cash equivalents) to Adjusted Earnings Before Interest, Tax, Depreciation and Amortization (Adjusted EBITDA) would be within a long term target leverage of 3.0x and 4.0x (2022: 3.0x and 4.0x, 2021: 3.0x and 4.0x), subject to various factors such as the availability and cost of capital and the potential long term return on our discretionary investments. We may fall outside of the target range in the shorter term to accommodate acquisitions, other restructurings or significant macro-economic changes.
Segment Adjusted EBITDA as defined by the Group is profit/(loss) for the period before income tax expense/(benefit), finance costs and income, depreciation and amortization, impairment of withholding tax receivables, business combination transaction costs, impairment of property, plant and equipment, intangible assets excluding goodwill and related prepaid land rent on the decommissioning of sites, reversal of provision for decommissioning costs, net (profit)/loss on sale of assets, share-based payment (credit)/expense, insurance claims, listing costs and certain other items that management believes are not indicative of the core performance of its business.
F-32
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
The Group’s net leverage ratios are shown in the table below:
|
|
2023 |
|
2022 |
* |
|
|
$’000 |
|
$'000 |
|
|
|
|
|
|
|
Bank and bond borrowings (note 22) |
|
3,510,847 |
|
3,344,402 |
|
Lease liabilities (note 23) |
|
601,994 |
|
605,558 |
|
Less: Cash and cash equivalents (note 20) |
|
(293,823) |
|
(514,078) |
|
Net debt |
|
3,819,018 |
|
3,435,882 |
|
|
|
|
|
|
|
Segment Adjusted EBITDA |
|
1,132,535 |
|
1,030,931 |
|
Management net leverage ratio |
|
3.4x |
|
3.3x |
|
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
Fair value hierarchy
The table below analyzes financial instruments carried at fair value, by valuation method. The different levels have been defined as follows:
| ● | Quoted prices (unadjusted) in active markets for identical assets or liabilities (level 1). |
| ● | Inputs other than quoted prices included within level 1 that are observable for the asset or liability, either directly (that is, as prices) or indirectly (that is, derived from prices) (level 2). |
| ● | Inputs for the asset or liability that are not based on observable market data (that is, unobservable inputs) (level 3). |
The following table presents the Group’s financial instruments that are measured at fair value at December 31, 2023 and 2022.
|
|
Level 1 |
|
Level 2 |
|
Total |
2023 |
|
$'000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Fair value through other comprehensive income financial assets |
|
13 |
|
— |
|
13 |
Interest rate caps (note 18) |
|
— |
|
565 |
|
565 |
Embedded options within listed bonds (note 18) |
|
— |
|
1,540 |
|
1,540 |
Foreign exchange swaps (note 18) |
|
— |
|
(68,133) |
|
(68,133) |
|
|
13 |
|
(66,028) |
|
(66,015) |
|
|
Level 1 |
|
Level 2 |
|
Total |
2022 |
|
$'000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Fair value through other comprehensive income financial assets |
|
10 |
|
— |
|
10 |
Interest rate caps (note 18) |
|
— |
|
821 |
|
821 |
Embedded options within listed bonds (note 18) |
|
— |
|
5,300 |
|
5,300 |
Foreign exchange swaps (note 18) |
|
— |
|
(1,393) |
|
(1,393) |
|
|
10 |
|
4,728 |
|
4,738 |
As at the end of the reporting period, the Group has level 1 and level 2 financial instruments.
F-33
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Financial instruments in level 1
The fair value of financial instruments traded in active markets is based on quoted market prices at the reporting date. A market is regarded as active if quoted prices are readily and regularly available from an exchange, dealer, broker, or regulatory agency, and those prices represent actual and regularly occurring market transactions on an arm’s length basis. The quoted market price used for financial assets held by the Group is the current bid price. These instruments are included in level 1. Instruments included in level 1 comprise investment in marketable securities and classified as fair value through other comprehensive income financial assets.
Financial instruments in level 2
The fair value of financial instruments that are not traded in an active market (for example, over the counter derivatives) is determined by using valuation techniques. These valuation techniques maximize the use of observable market data where it is available and rely as little as possible on entity specific estimates. If all significant inputs required to fair value an instrument are observable, the instrument is included in level 2. Instruments included in level 2 comprise primarily of Non deliverable forwards (NDF), foreign exchange swaps and options embedded in the bonds. Their fair values are determined based on mark to market values provided by the counterparty financial institutions or valuation techniques using observable market data.
Fair value estimation
|
|
2023 |
|
2022 |
||||
|
|
Carrying |
|
|
|
Carrying |
|
|
|
|
value |
|
Fair value |
|
value |
|
Fair value |
Financial liabilities |
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
|
|
Bank and bond borrowings (note 22) |
|
3,510,847 |
|
3,224,775 |
|
3,344,402 |
|
3,116,193 |
|
|
3,510,847 |
|
3,224,775 |
|
3,344,402 |
|
3,116,193 |
The fair values of non-current liabilities are based on discounted cash flows using a current borrowing rate.
The fair value of current assets and current liabilities are not materially different from their carrying values.
F-34
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Financial instruments by category
The Group’s financial instruments are categorized as follows:
Financial assets |
|
|
|
Fair value |
|
|
|
|
|
|
|
|
through other |
|
Fair value |
|
|
|
|
Amortized |
|
comprehensive |
|
through profit |
|
|
|
|
cost |
|
income |
|
or loss |
|
Total |
|
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
2023 |
|
|
|
|
|
|
|
|
Trade receivables (note 19) |
|
212,323 |
|
— |
|
— |
|
212,323 |
Other receivables (note 19) |
|
317,452 |
|
— |
|
— |
|
317,452 |
Cash and cash equivalents (note 20) |
|
293,823 |
|
— |
|
— |
|
293,823 |
Fair value through other comprehensive income financial assets |
|
— |
|
13 |
|
— |
|
13 |
Derivative financial instruments assets (note 18) |
|
— |
|
— |
|
2,105 |
|
2,105 |
|
|
823,598 |
|
13 |
|
2,105 |
|
825,716 |
|
|
|
|
|
|
|
|
|
2022 |
|
|
|
|
|
|
|
|
Trade receivables (note 19) |
|
211,025 |
|
— |
|
— |
|
211,025 |
Other receivables (note 19) |
|
387,019 |
|
— |
|
— |
|
387,019 |
Cash and cash equivalents (note 20) |
|
514,078 |
|
— |
|
— |
|
514,078 |
Fair value through other comprehensive income financial assets |
|
— |
|
10 |
|
— |
|
10 |
Derivative financial instruments assets (note 18) |
|
— |
|
— |
|
6,121 |
|
6,121 |
|
|
1,112,122 |
|
10 |
|
6,121 |
|
1,118,253 |
Fair value through other comprehensive income financial assets (IFRS 9) are marketable securities in various financial institutions in Nigeria.
Financial liabilities |
|
|
|
Fair value |
|
|
|
|
|
|
through profit |
|
|
|
|
Amortized cost |
|
or loss |
|
Total |
|
|
$'000 |
|
$'000 |
|
$'000 |
2023 |
|
|
|
|
|
|
Bank and bond borrowings (note 22) |
|
3,510,847 |
|
— |
|
3,510,847 |
Trade payables (note 21) |
|
330,622 |
|
— |
|
330,622 |
Other payables (note 21) |
|
115,335 |
|
— |
|
115,335 |
Derivative financial instruments liabilities (note 18) |
|
— |
|
68,133 |
|
68,133 |
Lease liabilities (note 23) |
|
601,994 |
|
— |
|
601,994 |
|
|
4,558,798 |
|
68,133 |
|
4,626,931 |
|
|
|
|
|
|
|
2022 |
|
|
|
|
|
|
Bank and bond borrowings (note 22) |
|
3,344,402 |
|
— |
|
3,344,402 |
Trade payables (note 21) |
|
442,959 |
|
— |
|
442,959 |
Other payables (note 21) |
|
90,135 |
|
— |
|
90,135 |
Derivative financial instruments liabilities (note 18) |
|
— |
|
1,393 |
|
1,393 |
Lease liabilities (note 23)* |
|
605,558 |
|
— |
|
605,558 |
|
|
4,483,054 |
|
1,393 |
|
4,484,447 |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
The fair values of non-current liabilities are based on discounted cash flows using a current borrowing rate. The fair values of trade payable and other current liabilities are not materially different from carrying values.
F-35
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
5.Segment reporting
The Group’s Executive Committee, identified as the chief operating decision maker (“CODM”), reviews and evaluates the Group’s performance from a business perspective according to how the geographical locations are managed. Regional and operating company management are responsible for managing performance, underlying risks, and effectiveness of operations. Regions are broadly based on a scale and geographic basis because the Group’s risks and rates of return are affected predominantly by the fact that the Group operates in different geographical areas, namely Nigeria as the major market, Cameroon, Côte d’Ivoire, Rwanda, South Africa and Zambia, as our Sub Saharan Africa business (“SSA”), Kuwait and Egypt as our Middle East and North Africa business (“MENA”) and Brazil, Colombia and Peru as our Latin America business (“Latam”).
The Executive Committee reviews the Company’s internal reporting to assess performance and allocate resources. Management has determined the operating segments based on these reports.
The CODM has identified four reportable and operating segments:
| ● | Nigeria |
| ● | SSA, which comprises operations in Cameroon, Côte d’Ivoire, Rwanda, South Africa and Zambia |
| ● | Latam, which comprises operations in Brazil, Colombia and Peru |
| ● | MENA, which comprises operations in Kuwait and Egypt. Although full operations in Egypt have not commenced, the business has incurred some startup costs. |
All operating segments are engaged in the business of leasing tower space for communication equipment and capacity leasing and services on fixed broadband networks to Mobile Network Operators (MNOs) and other customers (internet service providers, security functions or private corporations) and provide managed services in limited situations, such as maintenance, operations and leasing services, for certain towers owned by third parties within their respective geographic areas. However, they are managed and grouped within the four operating segments, which are primarily distinguished by reference to the scale of operations, to the similarity of their future prospects and long-term financial performance (i.e. margins and geographic basis).
The CODM primarily uses a measure of segment Adjusted EBITDA (as defined in note 4(e)) to assess the performance of the business. The CODM also regularly receives information about the Group’s revenue, assets and liabilities. The Group has additional corporate costs which do not meet the quantitative thresholds to be separately reported and which are aggregated in ‘Other’ in the reconciliation of financial information presented below. These include costs associated with centralized Group functions including Group executive, legal, finance, tax and treasury services.
There are no revenue transactions which occur between operating segments. Intercompany finance income, finance costs and loans are not included in the amounts below.
The segment’s assets and liabilities are comprised of all assets and liabilities attributable to the segment, based on the operations of the segment and the physical location of the assets, including goodwill and other intangible assets and are measured in the same way as in the financial statements. Other assets and liabilities that are not attributable to Nigeria, SSA, Latam and MENA segments consist principally of amounts excluded from specific segments including costs incurred for and by Group functions not attributable directly to the operations of the reportable segments, share-based payment and any amounts due on debt held at Group level as the balances are not utilized in assessing each segment’s performance.
F-36
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Summarized financial information for the year ended December 31, 2023 is as follows:
2023 |
|
Nigeria |
|
SSA |
|
Latam |
|
MENA |
|
Other |
|
Total |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues from external customers |
|
1,381,627 |
|
503,049 |
|
200,207 |
|
40,656 |
|
— |
|
2,125,539 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment Adjusted EBITDA (note 4(e)) |
|
855,317 |
|
257,072 |
|
145,754 |
|
22,121 |
|
(147,729) |
|
1,132,535 |
Depreciation and amortization (note 7 and 8) |
|
|
|
|
|
|
|
|
|
|
|
(435,586) |
Net gain on disposal of property, plant and equipment (note 8) |
|
|
|
|
|
|
|
|
|
|
|
3,806 |
Insurance claims (note 9) |
|
|
|
|
|
|
|
|
|
|
|
321 |
Impairment of withholding tax receivables in Nigeria (note 8) |
|
|
|
|
|
|
|
|
|
|
|
(47,992) |
Business combination costs (note 8) |
|
|
|
|
|
|
|
|
|
|
|
(2,432) |
Impairment of property, plant and equipment, intangible assets excluding goodwill and related prepaid land rent (note 7) |
|
|
|
|
|
|
|
|
|
|
|
(87,696) |
Other costs (a) |
|
|
|
|
|
|
|
|
|
|
|
(19,017) |
Share‑based payment expense (note 8) |
|
|
|
|
|
|
|
|
|
|
|
(13,370) |
Finance income (note 10) |
|
|
|
|
|
|
|
|
|
|
|
25,209 |
Finance costs (note 11) |
|
|
|
|
|
|
|
|
|
|
|
(2,436,511) |
Other non-operating income (note 9) |
|
|
|
|
|
|
|
|
|
|
|
83 |
Loss before income tax |
|
|
|
|
|
|
|
|
|
|
|
(1,880,650) |
Additions of property, plant and equipment and intangible assets: |
|
|
|
|
|
|
|
|
|
|
|
|
- through business combinations |
|
— |
|
— |
|
— |
|
8,566 |
|
|
|
|
- In the normal course of business |
|
320,027 |
|
96,905 |
|
247,580 |
|
18,034 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment assets |
|
1,441,240 |
|
1,406,675 |
|
2,216,873 |
|
186,586 |
|
|
|
|
Segment liabilities |
|
866,996 |
|
815,769 |
|
766,687 |
|
111,751 |
|
|
|
|
| (a) | Other costs for the year ended December 31, 2023 included one-off consulting fees related to corporate structures and operating systems of $10.6 million, one-off consulting services of $1.7 million, costs related to internal reorganization of $4.7 million and one-off professional fees related to financing of $0.3 million. |
F-37
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Summarized financial information for the year ended December 31, 2022 is as follows:
2022 |
|
Nigeria |
|
SSA |
|
Latam |
|
MENA |
|
Other |
|
Total |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues from external customers |
|
1,352,402 |
|
412,824 |
|
160,008 |
|
36,065 |
|
— |
|
1,961,299 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment Adjusted EBITDA (note 4(e))* |
|
802,822 |
|
230,066 |
|
114,434 |
|
16,021 |
|
(132,412) |
|
1,030,931 |
Depreciation and amortization (note 7 and 8)* |
|
|
|
|
|
|
|
|
|
|
|
(468,904) |
Net loss on disposal of property, plant and equipment (note 8) |
|
|
|
|
|
|
|
|
|
|
|
(3,382) |
Insurance claims (note 9) |
|
|
|
|
|
|
|
|
|
|
|
2,092 |
Impairment of withholding tax receivables in Nigeria (note 8) |
|
|
|
|
|
|
|
|
|
|
|
(52,334) |
Impairment of Goodwill (note 8) |
|
|
|
|
|
|
|
|
|
|
|
(121,596) |
Business combination costs (note 8) |
|
|
|
|
|
|
|
|
|
|
|
(20,851) |
Impairment of property, plant and equipment, intangible assets excluding goodwill and related prepaid land rent (note 7) |
|
|
|
|
|
|
|
|
|
|
|
(38,157) |
Other costs (a) |
|
|
|
|
|
|
|
|
|
|
|
(4,873) |
Share‑based payment expense (note 8) |
|
|
|
|
|
|
|
|
|
|
|
(13,265) |
Finance income (note 10) |
|
|
|
|
|
|
|
|
|
|
|
15,825 |
Finance costs (note 11)* |
|
|
|
|
|
|
|
|
|
|
|
(872,049) |
Other non-operating income |
|
|
|
|
|
|
|
|
|
|
|
2,584 |
Loss before income tax* |
|
|
|
|
|
|
|
|
|
|
|
(543,979) |
Additions of property, plant and equipment and intangible assets: |
|
|
|
|
|
|
|
|
|
|
|
|
- through business combinations* |
|
— |
|
719,219 |
|
386,460 |
|
3,650 |
|
|
|
|
- In the normal course of business |
|
400,430 |
|
101,154 |
|
135,069 |
|
23,532 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment assets* |
|
2,270,656 |
|
1,639,254 |
|
1,931,317 |
|
178,471 |
|
|
|
|
Segment liabilities* |
|
935,387 |
|
912,875 |
|
555,885 |
|
109,087 |
|
|
|
|
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
| (a) | Other costs for the year ended December 31, 2022 included $2.3 million costs related to internal reorganization. |
F-38
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Summarized financial information for the year ended December 31, 2021 is as follows:
2021 |
|
Nigeria |
|
SSA |
|
Latam |
|
MENA |
|
Other |
|
Total |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues from external customers |
|
1,146,732 |
|
343,945 |
|
59,706 |
|
29,347 |
|
— |
|
1,579,730 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment Adjusted EBITDA (note 4(e)) |
|
783,544 |
|
190,654 |
|
42,688 |
|
13,085 |
|
(103,575) |
|
926,396 |
Depreciation and amortization (note 7 and 8) |
|
|
|
|
|
|
|
|
|
|
|
(382,882) |
Net gain on disposal of property, plant and equipment (note 8) |
|
|
|
|
|
|
|
|
|
|
|
2,499 |
Insurance claims (note 9) |
|
|
|
|
|
|
|
|
|
|
|
6,861 |
Impairment of withholding tax receivables in Nigeria (note 8) |
|
|
|
|
|
|
|
|
|
|
|
(61,810) |
Business combination costs (note 8) |
|
|
|
|
|
|
|
|
|
|
|
(15,779) |
Impairment of property, plant and equipment, intangible assets excluding goodwill and related prepaid land rent (note 7) |
|
|
|
|
|
|
|
|
|
|
|
(51,113) |
Reversal of provision for decommissioning costs |
|
|
|
|
|
|
|
|
|
|
|
2,671 |
Listing costs |
|
|
|
|
|
|
|
|
|
|
|
(22,153) |
Other costs (a) |
|
|
|
|
|
|
|
|
|
|
|
(15,752) |
Share‑based payment expense (note 8) |
|
|
|
|
|
|
|
|
|
|
|
(11,780) |
Finance income (note 10) |
|
|
|
|
|
|
|
|
|
|
|
25,522 |
Finance costs (note 11) |
|
|
|
|
|
|
|
|
|
|
|
(422,034) |
Other non-operating income |
|
|
|
|
|
|
|
|
|
|
|
11,213 |
Loss before income tax |
|
|
|
|
|
|
|
|
|
|
|
(8,141) |
Additions of property, plant and equipment and intangible assets: |
|
|
|
|
|
|
|
|
|
|
|
|
- through business combinations |
|
— |
|
— |
|
468,535 |
|
— |
|
|
|
|
- In the normal course of business |
|
318,971 |
|
56,291 |
|
103,338 |
|
20,725 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment assets |
|
2,038,376 |
|
1,024,347 |
|
1,453,729 |
|
173,888 |
|
|
|
|
Segment liabilities |
|
745,944 |
|
494,236 |
|
393,090 |
|
100,947 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| (a) | Other costs for the year ended December 31, 2021 included one-off professional costs related to financing of $15.1 million and aborted transaction costs of $0.7 million. |
F-39
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Geographical information:
The following countries in which the Group operates contribute material (10% or more) revenue based on mobile network operations and/or have material non-current assets in are as follows:
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$'000 |
|
$'000 |
Revenue |
|
|
|
|
|
|
Nigeria |
|
1,381,627 |
|
1,352,402 |
|
1,146,732 |
Rest of world |
|
743,912 |
|
608,897 |
|
432,998 |
|
|
2,125,539 |
|
1,961,299 |
|
1,579,730 |
Non‑current assets* |
|
|
|
|
|
|
Nigeria |
|
898,264 |
|
1,597,989 |
|
1,572,774 |
Brazil |
|
1,875,098 |
|
1,648,863 |
|
1,274,378 |
South Africa |
|
493,651 |
|
652,492 |
** |
— |
Rest of world |
|
912,459 |
|
953,607 |
|
1,013,385 |
|
|
4,179,472 |
|
4,852,951 |
|
3,860,537 |
*Non-current assets exclude financial instruments, non-current trade and other receivables and deferred tax assets.
**Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
Revenue from two tier one customers represent approximately 10% or more of the Group’s total revenue:
|
|
2023 |
|
2022 |
|
2021 |
|
|
|
$’000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
|
|
Customer A |
|
60 |
% |
62 |
% |
66 |
% |
Customer B |
|
17 |
% |
17 |
% |
14 |
% |
6.Revenue
The Group’s revenue accrues from providing telecommunication support services. The Group provides infrastructure sharing and leasing known as colocation (which includes colocation rental revenue and colocation services) and to a limited extent, managed services.
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Lease component |
|
1,736,864 |
|
1,534,415 |
|
1,233,816 |
Services component |
|
388,675 |
|
426,884 |
|
345,914 |
|
|
2,125,539 |
|
1,961,299 |
|
1,579,730 |
F-40
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
The following table shows unsatisfied performance obligations which represents the services component of future minimum receipts expected from customers under non-cancellable agreements in effect at December 31, as follows:
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Within one year |
|
302,046 |
|
418,137 |
|
351,071 |
1-2 years |
|
271,463 |
|
386,416 |
|
309,861 |
2-3 years |
|
214,028 |
|
309,326 |
|
255,791 |
3-4 years |
|
203,051 |
|
288,244 |
|
211,615 |
4-5 years |
|
184,186 |
|
276,816 |
|
190,018 |
After 5 years |
|
704,110 |
|
1,149,649 |
|
858,912 |
|
|
1,878,884 |
|
2,828,588 |
|
2,177,268 |
The Group leases space on its towers under leases over periods ranging between 5 and 20 years.
The lease component of future minimum receipts expected from tenants under non-cancellable agreements in effect at December 31, were as follows:
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Within one year |
|
1,597,832 |
|
1,589,439 |
|
1,284,692 |
1-2 years |
|
1,311,962 |
|
1,478,221 |
|
1,177,665 |
2-3 years |
|
1,236,565 |
|
1,194,924 |
|
1,083,942 |
3-4 years |
|
1,197,965 |
|
1,136,303 |
|
847,224 |
4-5 years |
|
1,129,060 |
|
1,098,901 |
|
749,839 |
After 5 years |
|
3,980,847 |
|
4,008,713 |
|
2,703,888 |
|
|
10,454,231 |
|
10,506,501 |
|
7,847,250 |
Certain customer contracts allow for the cancellation of a proportion of sites during the contract term without payment of termination penalties. The minimum service and lease revenue in the tables above assumes that each customer will fully utilize this Churn available to them under the contract. Where rentals are denominated in US Dollar, which is not the functional currency of the subsidiary, they have been included in the above table at the exchange rate at the end of the reporting period.
F-41
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
7.Cost of sales
|
|
2023 |
|
2022 |
* |
2021 |
|
|
$'000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Power generation |
|
396,714 |
|
419,151 |
|
267,044 |
Depreciation (note 14)** |
|
373,889 |
|
411,579 |
|
330,799 |
Tower repairs and maintenance |
|
96,258 |
|
90,126 |
|
74,523 |
Impairment of property, plant and equipment, intangible assets excluding goodwill and related prepaid land rent |
|
87,696 |
|
38,157 |
|
51,113 |
Amortization (note 15) |
|
44,618 |
|
42,050 |
|
34,051 |
Security services |
|
42,512 |
|
43,448 |
|
36,132 |
Site regulatory permits |
|
37,502 |
|
33,999 |
|
41,165 |
Staff costs (note 8.3) |
|
33,149 |
|
33,229 |
|
26,323 |
Travel costs |
|
9,700 |
|
5,343 |
|
7,155 |
Short-term site rental |
|
8,613 |
|
14,111 |
|
11,165 |
Insurance |
|
4,648 |
|
5,109 |
|
4,156 |
Professional fees |
|
2,570 |
|
3,460 |
|
3,385 |
Short-term other rent |
|
2,266 |
|
2,813 |
|
3,419 |
Vehicle maintenance and repairs |
|
2,184 |
|
1,968 |
|
2,754 |
Other |
|
40,987 |
|
12,458 |
|
14,204 |
|
|
1,183,306 |
|
1,157,001 |
|
907,388 |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
**Presented net of related indirect tax receivable in Brazil of $1.3 million (2022: $0.9 million, 2021: $0.4 million). Refer to note 14.
Included in Other are $31.1 million (2022: $0.8 million, 2021: $Nil) in foreign exchange losses on cost of sales.
8.Administrative expenses
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Staff costs (note 8.3) |
|
156,602 |
|
132,399 |
|
101,567 |
Professional fees |
|
61,094 |
|
38,964 |
|
49,685 |
Impairment of withholding tax receivables* |
|
47,992 |
|
52,334 |
|
61,810 |
Facilities, short-term rental and upkeep |
|
43,616 |
|
34,203 |
|
23,210 |
Key management compensation (note 30.2) |
|
18,508 |
|
21,703 |
|
25,642 |
Travel costs |
|
14,124 |
|
15,535 |
|
8,654 |
Share-based payment expense (note 28) |
|
13,370 |
|
13,265 |
|
11,780 |
Depreciation (note 14) |
|
11,314 |
|
9,995 |
|
13,917 |
Amortization (note 15) |
|
5,765 |
|
5,280 |
|
4,115 |
Business combination transaction costs |
|
2,432 |
|
20,851 |
|
15,779 |
Impairment of goodwill |
|
— |
|
121,596 |
|
— |
Operating taxes |
|
(1,005) |
|
963 |
|
1,561 |
Net (gain)/loss on disposal of property, plant and equipment |
|
(3,806) |
|
3,382 |
|
(2,499) |
Other |
|
34,777 |
|
30,705 |
|
21,290 |
|
|
404,783 |
|
501,175 |
|
336,511 |
*Withholding tax receivables were impaired following the Group’s assessment of the recoverability of withholding tax assets based on a five year cash flow projection and an analysis of the utilization of withholding tax balances against future income tax liabilities.
Foreign exchange gains and losses on administrative expenses are included in Other.
F-42
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
8.1(Loss allowance)/reversal of loss allowance on trade receivables
The loss allowance for the year is $7.2 million (2022: reversal of loss allowance of $4.4 million, 2021: reversal of loss allowance of $34.0 million). This represents the net impact of new or increased provisions for balances now assessed as doubtful partially offset by the reversal of allowances made in previous periods in respect of balances recovered in the period or no longer considered doubtful.
8.2Staff costs are analyzed as follows:
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Salaries and wages |
|
157,807 |
|
137,450 |
|
106,754 |
Other benefits |
|
19,877 |
|
18,768 |
|
16,282 |
Share-based payment expense (note 28) |
|
13,370 |
|
13,265 |
|
11,780 |
Pension contribution – employer |
|
12,067 |
|
9,410 |
|
4,854 |
|
|
203,121 |
|
178,893 |
|
139,670 |
Other benefits are comprised of employee related insurances, employee training costs, staff entertainment and internal reorganization costs.
8.3Staff costs were classified as:
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Administrative expenses |
|
169,972 |
|
145,664 |
|
113,347 |
Cost of sales |
|
33,149 |
|
33,229 |
|
26,323 |
|
|
203,121 |
|
178,893 |
|
139,670 |
9.Other income
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Insurance claims |
|
321 |
|
2,092 |
|
6,861 |
Other income |
|
83 |
|
2,584 |
|
11,648 |
|
|
404 |
|
4,676 |
|
18,509 |
Other income for the 2021 year mainly relates to the remeasurement of the liabilities for contingent consideration on the Skysites Acquisition and the IHS Kuwait Acquisition.
F-43
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
10.Finance income
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Interest income - bank deposits |
|
25,008 |
|
15,170 |
|
7,798 |
Net foreign exchange gain arising from derivative instruments - realized |
|
38 |
|
655 |
|
9,889 |
Fair value gain on embedded options and interest rate caps |
|
163 |
|
— |
|
604 |
Fair value gain on embedded derivative within revenue contract |
|
— |
|
— |
|
7,231 |
|
|
25,209 |
|
15,825 |
|
25,522 |
11.Finance costs
|
|
2023 |
|
2022 |
* |
2021 |
|
|
$’000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Interest expenses - third party loans |
|
362,381 |
|
256,208 |
|
174,876 |
Interest expenses - withholding tax paid on bond interest |
|
13,439 |
|
12,197 |
|
4,404 |
Unwinding of discount on decommissioning liability |
|
9,156 |
|
7,084 |
|
4,644 |
Interest and finance charges paid/payable for lease liabilities |
|
61,617 |
|
52,234 |
|
32,826 |
Net foreign exchange loss arising from financing - unrealized |
|
1,713,242 |
|
157,836 |
|
126,131 |
Net foreign exchange loss arising from financing - realized |
|
162,944 |
|
206,329 |
|
43,422 |
Fair value loss on embedded options and interest rate caps |
|
3,760 |
|
159,889 |
|
— |
Costs paid on early loan and bond settlement |
|
— |
|
— |
|
18,171 |
Fees on loans and financial derivatives |
|
17,821 |
|
18,673 |
|
13,663 |
Net foreign exchange loss on derivative instruments - unrealized |
|
92,151 |
|
1,599 |
|
3,897 |
|
|
2,436,511 |
|
872,049 |
|
422,034 |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
The increase in net foreign exchange loss arising from financing - unrealized in 2023 is primarily due to the significant devaluation in the exchange rate between the Naira and the US Dollar during the year (2022: net foreign exchange loss arising from financing - unrealized in 2022 is primarily due to significant fluctuations in exchange rates predominantly between the Kwacha and the US Dollar, the Naira and the US Dollar rate and the Brazilian Real and the US Dollar. 2021: predominantly from the Kwacha and US Dollar, the Naira and the US Dollar rate and the Brazilian Real and the US Dollar rate). This arises on commercial bank and intercompany loans denominated in US Dollars at subsidiary level as a result of loan revaluations in local functional currency at period ends. Refer to note 4(b) for further information.
F-44
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
12.Income Tax Expense
|
|
2023 |
|
2022 |
* |
2021 |
|
|
$’000 |
|
$'000 |
|
$'000 |
Current taxes: |
|
|
|
|
|
|
Current year |
|
114,055 |
|
109,044 |
|
93,774 |
Prior years |
|
375 |
|
(202) |
|
(2,082) |
Total current tax charge |
|
114,430 |
|
108,842 |
|
91,692 |
|
|
|
|
|
|
|
Deferred income taxes (note 16): |
|
|
|
|
|
|
Current year |
|
(32,048) |
|
(183,495) |
|
(69,158) |
Prior years |
|
25,146 |
|
(360) |
|
(4,554) |
Total deferred income tax credit |
|
(6,902) |
|
(183,855) |
|
(73,712) |
|
|
|
|
|
|
|
Total taxation charge/(credit) |
|
107,528 |
|
(75,013) |
|
17,980 |
|
|
|
|
|
|
|
Reconciliation of effective tax charge |
|
|
|
|
|
|
Loss before income tax |
|
(1,880,650) |
|
(543,979) |
|
(8,141) |
|
|
|
|
|
|
|
Tax calculated at domestic tax rates applicable to profits in respective countries |
|
(638,254) |
|
(193,643) |
|
(4,433) |
Tax effects of: |
|
|
|
|
|
|
Income not subject to taxation** |
|
(21,771) |
|
(6,687) |
|
(5,307) |
Expenses not deductible for tax purposes |
|
89,958 |
|
75,197 |
|
35,191 |
Movement in deferred tax assets not recognized*** |
|
633,448 |
|
79,477 |
|
74,084 |
Change in tax base**** |
|
1,769 |
|
(74,291) |
|
(86,184) |
Prior year under/(over) provision***** |
|
25,521 |
|
(562) |
|
6,636 |
Goodwill impairment |
|
— |
|
40,937 |
|
— |
Withholding tax on distributable profits |
|
3,742 |
|
5,967 |
|
— |
Other profit‑related taxes |
|
— |
|
— |
|
5,239 |
Effects of changes in tax rates |
|
(849) |
|
(4,845) |
|
(5,272) |
Non-deductible share-based payment expense |
|
— |
|
— |
|
1,441 |
Movement in uncertain tax positions |
|
9,524 |
|
6,501 |
|
(3,264) |
Foreign exchange effects and other differences |
|
4,440 |
|
(3,064) |
|
(151) |
Total taxes |
|
107,528 |
|
(75,013) |
|
17,980 |
Current income tax receivables |
|
3,755 |
|
1,174 |
|
128 |
Current income tax payables |
|
(75,612) |
|
(70,008) |
|
(68,834) |
|
|
(71,857) |
|
(68,834) |
|
(68,706) |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
**The adjusting item of $21.7 million relates to profits of the Global Independent Connect Limited subsidiary in Nigeria which are exempt from tax since this subsidiary benefits from pioneer status.
***The adjustment of $633.4 million for the year ended December 31, 2023 with regards to the movement in recognition of deferred tax assets, primarily relates to an adjusting item of $592.2 million for Nigeria. The largest component of the adjusting item for Nigeria is $562.1 million relating to an unrecognized deferred tax asset arising in the year as a result of unrealized foreign exchange losses on the devaluation of the Naira. Other movements in Nigeria include impairments of other deferred tax assets arising in the year ($124.3 million) and an offsetting recognition of capital allowances previously impaired ($94.3 million). There are also movements of unrecognized deferred tax assets which are not recognized in the UK ($28.8 million relating to finance costs and expenses of management) and South Africa ($19.3 million with respect to a capital loss). These amounts have been treated as unrecognized due to a lack of certainty that the amounts are recoverable.
****Effect of change in tax base of assets in Brazil following the legal merger of acquired businesses and group holding entities in 2023, 2022 and 2021.
F-45
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
*****During the year the Group derecognized deferred tax assets amounting to $20.6 million as a result of obtaining greater clarity on the treatment of certain expenses arising in 2022 with respect to Brazil.
For the years ended December 31, 2023 and 2022, the statutory rates for the largest markets by turnover are: Nigeria 33.0% and 32.5%, respectively, (due to a combination of corporate income tax and education tax) and Brazil 34.0% and 34.0%, respectively, (due to a combination of corporate income tax and social contribution on income taxes). The statutory tax rates in other markets range from 15.0% to 35.0% in 2023 (15.0% to 40.0% in 2022).
The movement in the current income tax is as follows: |
|
|
|
|
|
|
At beginning of year |
|
(68,834) |
|
(68,706) |
|
(48,703) |
Additions through business combination |
|
— |
|
— |
|
(3,434) |
Charged to profit or loss |
|
(114,430) |
|
(108,842) |
|
(91,692) |
Paid during the year |
|
45,411 |
|
51,245 |
|
29,147 |
Withholding tax netting off |
|
57,565 |
|
54,878 |
|
45,849 |
Exchange difference |
|
8,431 |
|
2,591 |
|
127 |
At end of year |
|
(71,857) |
|
(68,834) |
|
(68,706) |
Deferred income tax assets are recognized for deductible temporary differences and tax losses carried forward only to the extent that the realization of the related tax benefits are expected to be met through the reversal of taxable temporary differences and future taxable profits. Refer to note 16 for deferred income tax.
13.Loss per share
The following table sets forth basic and diluted net income per common share computational data (in thousands, except per share data):
|
|
|
|
|
|
|
|
|
2023 |
|
2022 |
* |
2021 |
|
|
|
|
|
|
|
Loss attributable to equity holders ($'000) |
|
(1,988,178) |
|
(468,966) |
|
(26,121) |
Less: allocation of loss to non-controlling interest ($'000) |
|
(11,569) |
|
(9,959) |
|
(289) |
Loss attributable to IHS common shareholders ($'000) |
|
(1,976,609) |
|
(459,007) |
|
(25,832) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic weighted average shares outstanding (‘000)** |
|
333,176 |
|
330,963 |
|
301,185 |
Potentially dilutive securities (‘000)** |
|
1,980 |
|
5,083 |
|
20,323 |
Potentially dilutive weighted average common shares outstanding (‘000)** |
|
335,156 |
|
336,046 |
|
321,508 |
|
|
|
|
|
|
|
Loss per share: |
|
|
|
|
|
|
Basic loss per share ($) |
|
(5.93) |
|
(1.39) |
|
(0.09) |
Diluted loss per share ($) |
|
(5.93) |
|
(1.39) |
|
(0.09) |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
**On October 13, 2021 all of the outstanding Class A and Class B shares of the Company were exchanged on a 500 to 1 basis for ordinary shares. The loss per share is based on the new number of shares. The comparatives have also been adjusted. Refer to note 25 for further information.
Potentially dilutive securities represent share-based compensation, but these securities are currently anti-dilutive and thus do not impact diluted loss per share.
F-46
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
14.Property, plant and equipment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
Towers |
|
|
|
|
|
Furniture and |
|
|
|
Capital |
|
(excluding |
|
Right- |
|
|
and tower |
|
Fiber |
|
Land and |
|
office |
|
Motor |
|
work in |
|
right-of-use |
|
of-use |
|
|
equipment |
|
assets |
|
buildings |
|
equipment |
|
vehicles |
|
progress |
|
asset) |
|
asset |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
Cost |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2021 |
|
2,660,120 |
|
— |
|
47,436 |
|
18,169 |
|
20,148 |
|
74,646 |
|
2,820,519 |
|
549,594 |
Additions during the year |
|
20,995 |
|
— |
|
825 |
|
5,056 |
|
6,012 |
|
224,479 |
|
257,367 |
|
113,722 |
Additions through business combinations (note 31)*** |
|
77,142 |
|
233,809 |
|
968 |
|
93 |
|
— |
|
5,495 |
|
317,507 |
|
41,709 |
Reclassification |
|
124,548 |
|
23,241 |
|
5,999 |
|
— |
|
— |
|
(153,788) |
|
— |
|
— |
Transfer from advance payments |
|
111,439 |
|
7,862 |
|
4,112 |
|
— |
|
— |
|
3,959 |
|
127,372 |
|
— |
Disposals* |
|
(21,359) |
|
— |
|
— |
|
(82) |
|
(1,825) |
|
— |
|
(23,266) |
|
(18,872) |
Effects of movement in exchange rates |
|
(143,357) |
|
(14,222) |
|
(3,072) |
|
(1,038) |
|
(877) |
|
(8,438) |
|
(171,004) |
|
(35,649) |
At December 31, 2021 |
|
2,829,528 |
|
250,690 |
|
56,268 |
|
22,198 |
|
23,458 |
|
146,353 |
|
3,328,495 |
|
650,504 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2022 |
|
2,829,528 |
|
250,690 |
|
56,268 |
|
22,198 |
|
23,458 |
|
146,353 |
|
3,328,495 |
|
650,504 |
Additions during the year**** |
|
(20,994) |
|
70,905 |
|
1,489 |
|
7,453 |
|
6,961 |
|
350,512 |
|
416,326 |
|
100,832 |
Additions through business combinations (note 31)***/***** |
|
266,110 |
|
— |
|
885 |
|
— |
|
— |
|
— |
|
266,995 |
|
478,602 |
Reclassification |
|
176,625 |
|
10,991 |
|
1,992 |
|
4,231 |
|
— |
|
(193,839) |
|
— |
|
— |
Transfer from advance payments |
|
100,578 |
|
16,412 |
|
6,754 |
|
33 |
|
— |
|
2,008 |
|
125,785 |
|
— |
Disposals* |
|
(239,350) |
|
— |
|
— |
|
(459) |
|
(1,286) |
|
— |
|
(241,095) |
|
(17,755) |
Effects of movement in exchange rates***** |
|
(150,930) |
|
15,184 |
|
(3,802) |
|
(1,148) |
|
(1,856) |
|
(17,876) |
|
(160,428) |
|
(47,003) |
At December 31, 2022***** |
|
2,961,567 |
|
364,182 |
|
63,586 |
|
32,308 |
|
27,277 |
|
287,158 |
|
3,736,078 |
|
1,165,180 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2023 |
|
2,961,567 |
|
364,182 |
|
63,586 |
|
32,308 |
|
27,277 |
|
287,158 |
|
3,736,078 |
|
1,165,180 |
Additions during the year**** |
|
64,165 |
|
32,293 |
|
3,017 |
|
3,775 |
|
4,481 |
|
351,362 |
|
459,093 |
|
123,281 |
Additions through business combinations (note 31)*** |
|
5,576 |
|
— |
|
— |
|
— |
|
— |
|
— |
|
5,576 |
|
— |
Reclassification |
|
208,363 |
|
81,929 |
|
5,210 |
|
(2,300) |
|
337 |
|
(293,539) |
|
— |
|
— |
Transfer from advance payments |
|
67,978 |
|
2,529 |
|
2,164 |
|
— |
|
— |
|
16,643 |
|
89,314 |
|
— |
Disposals* |
|
(122,022) |
|
(35,575) |
|
— |
|
(1,743) |
|
(2,216) |
|
— |
|
(161,556) |
|
(52,271) |
Effects of movement in exchange rates |
|
(880,175) |
|
3,431 |
|
(34,697) |
|
(7,589) |
|
(10,497) |
|
(148,759) |
|
(1,078,286) |
|
(117,853) |
Reclassified to assets held for sale |
|
(111,551) |
|
— |
|
— |
|
(52) |
|
— |
|
(127) |
|
(111,730) |
|
(1,347) |
At December 31, 2023 |
|
2,193,901 |
|
448,789 |
|
39,280 |
|
24,399 |
|
19,382 |
|
212,738 |
|
2,938,489 |
|
1,116,990 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated depreciation and impairment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2021 |
|
1,352,192 |
|
— |
|
1,728 |
|
14,291 |
|
14,268 |
|
— |
|
1,382,479 |
|
81,464 |
Charge for the year** |
|
272,068 |
|
5,366 |
|
296 |
|
3,806 |
|
2,902 |
|
— |
|
284,438 |
|
60,685 |
Impairment/(reversal of impairment) |
|
48,391 |
|
— |
|
(318) |
|
— |
|
— |
|
— |
|
48,073 |
|
2,797 |
Disposals* |
|
(14,660) |
|
— |
|
— |
|
(73) |
|
(1,816) |
|
— |
|
(16,549) |
|
(8,634) |
Effects of movement in exchange rates |
|
(82,676) |
|
(12) |
|
(69) |
|
(867) |
|
(583) |
|
— |
|
(84,207) |
|
(6,459) |
At December 31, 2021 |
|
1,575,315 |
|
5,354 |
|
1,637 |
|
17,157 |
|
14,771 |
|
— |
|
1,614,234 |
|
129,853 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2022 |
|
1,575,315 |
|
5,354 |
|
1,637 |
|
17,157 |
|
14,771 |
|
— |
|
1,614,234 |
|
129,853 |
Charge for the year** |
|
268,999 |
|
54,152 |
|
315 |
|
5,800 |
|
4,610 |
|
— |
|
333,876 |
|
88,615 |
Impairment |
|
34,702 |
|
201 |
|
— |
|
— |
|
— |
|
— |
|
34,903 |
|
3,151 |
Disposals* |
|
(234,117) |
|
— |
|
— |
|
(301) |
|
(1,272) |
|
— |
|
(235,690) |
|
(13,237) |
Effects of movement in exchange rates***** |
|
(83,573) |
|
(675) |
|
(119) |
|
(1,219) |
|
(1,100) |
|
— |
|
(86,686) |
|
(8,221) |
At December 31, 2022***** |
|
1,561,326 |
|
59,032 |
|
1,833 |
|
21,437 |
|
17,009 |
|
— |
|
1,660,637 |
|
200,161 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2023 |
|
1,561,326 |
|
59,032 |
|
1,833 |
|
21,437 |
|
17,009 |
|
— |
|
1,660,637 |
|
200,161 |
Charge for the year** |
|
216,776 |
|
65,246 |
|
358 |
|
4,173 |
|
4,017 |
|
— |
|
290,570 |
|
95,895 |
Impairment |
|
85,567 |
|
464 |
|
— |
|
— |
|
— |
|
— |
|
86,031 |
|
1,663 |
Disposals* |
|
(120,503) |
|
(34,506) |
|
— |
|
(1,723) |
|
(2,141) |
|
— |
|
(158,873) |
|
(23,920) |
Effects of movement in exchange rates |
|
(587,037) |
|
6,143 |
|
(958) |
|
(4,826) |
|
(6,135) |
|
— |
|
(592,813) |
|
(43,018) |
Reclassified to assets held for sale |
|
(87,290) |
|
— |
|
— |
|
(8) |
|
— |
|
— |
|
(87,298) |
|
(700) |
At December 31, 2023 |
|
1,068,839 |
|
96,379 |
|
1,233 |
|
19,053 |
|
12,750 |
|
— |
|
1,198,254 |
|
230,081 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net book value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2021 |
|
1,254,213 |
|
245,336 |
|
54,631 |
|
5,041 |
|
8,687 |
|
146,353 |
|
1,714,261 |
|
520,651 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2022*** |
|
1,400,241 |
|
305,150 |
|
61,753 |
|
10,871 |
|
10,268 |
|
287,158 |
|
2,075,441 |
|
965,019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2023 |
|
1,125,062 |
|
352,410 |
|
38,047 |
|
5,346 |
|
6,632 |
|
212,738 |
|
1,740,235 |
|
886,909 |
*The disposals value of right-of-use assets represents disposals due to terminated leases and the impact of remeasurement of lease assets as a result of changes in lease terms.
**The charge for the period does not agree to the charge in the consolidated statement of income/(loss) and other comprehensive income/(loss) due to the indirect taxes benefit of $1.3 million (2022: $0.9 million, 2021: $0.4 million) in IHS Brasil Cessão de Infraestruturas S.A. claimed through depreciation over the useful life of the asset.
F-47
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
***Includes subsequent asset acquisitions on business combination transactions.
****Includes net movements in assets relating to the decommissioning and site restoration provision.
*****Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
Capital work-in-progress comprises mainly of tower and tower equipment still under construction and not yet available for use. The Group transfers such assets to the appropriate class once they are available for use. There were no qualifying borrowing costs capitalized during the year.
The impairment in the year ended December 31, 2023 includes $71.0 million from power equipment assets in the SSA segment being classified as assets held for sale and remeasured at fair value less cost to sell. The sale of the assets is expected to be concluded within the next 12 months. Assets are not depreciated while they are classified as held for sale. The impairment in the year ended December 31, 2022 is primarily driven by the rationalization program agreed with a Key Customer which resulted in the impairment of the related Towers. It was determined that the recoverable amounts were nil and therefore their carrying amounts were written down to the recoverable amount. The impairment losses have been recognized in cost of sales in the consolidated statement of loss and other comprehensive income/(loss). The impairment in the year ended December 31, 2021 relates to towers on certain sites made dormant following the consolidation of customer equipment between sites, such towers being no longer in use and with no installed customer equipment.
| (i) | Depreciation expense has been included in cost of sales and administrative expenses in the statement of income and other comprehensive income as below: |
|
|
2023 |
|
2022 |
* |
2021 |
|
|
$'000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Cost of sales (note 7) |
|
373,889 |
|
411,579 |
|
330,799 |
Administrative expense (note 8) |
|
11,314 |
|
9,995 |
|
13,917 |
|
|
385,203 |
|
421,574 |
|
344,716 |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
| (ii) | Analysis of right of use assets |
The carrying value of right of use assets at December 31, 2023 are comprised of vehicles of $2.4 million (2022: $3.5 million, 2021: $1.8 million) and land and building assets, the majority being leased land on which our towers are situated.
F-48
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
15.Goodwill and other intangible assets
|
|
|
|
Customer- |
|
Network - |
|
|
|
|
|
|
|
|
|
|
related |
|
related |
|
|
|
|
|
|
|
|
|
|
intangible |
|
intangible |
|
|
|
|
|
|
|
|
Goodwill |
|
assets |
|
assets |
|
Licenses |
|
Software |
|
Total |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
Cost |
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2021 |
|
656,507 |
|
732,434 |
|
73,552 |
|
15,796 |
|
22,091 |
|
1,500,380 |
Additions during the year |
|
— |
|
— |
|
— |
|
3,145 |
|
1,909 |
|
5,054 |
Additions through business combinations |
|
156,817 |
|
191,332 |
|
38,205 |
|
— |
|
1,035 |
|
387,389 |
Disposals |
|
— |
|
— |
|
— |
|
(18) |
|
(723) |
|
(741) |
Exchange difference |
|
(33,177) |
|
(46,002) |
|
(4,555) |
|
(1,217) |
|
(514) |
|
(85,465) |
At December 31, 2021 |
|
780,147 |
|
877,764 |
|
107,202 |
|
17,706 |
|
23,798 |
|
1,806,617 |
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2022 |
|
780,147 |
|
877,764 |
|
107,202 |
|
17,706 |
|
23,798 |
|
1,806,617 |
Additions during the year |
|
— |
|
— |
|
— |
|
14,772 |
|
6,413 |
|
21,185 |
Additions through business combinations (note 31)*/*** |
|
119,035 |
|
171,765 |
|
72,932 |
|
— |
|
— |
|
363,732 |
Disposals |
|
— |
|
— |
|
— |
|
(4) |
|
(395) |
|
(399) |
Exchange difference*** |
|
(13,543) |
|
(18,163) |
|
(4,844) |
|
(1,886) |
|
(572) |
|
(39,008) |
At December 31, 2022*** |
|
885,639 |
|
1,031,366 |
|
175,290 |
|
30,588 |
|
29,244 |
|
2,152,127 |
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2023 |
|
885,639 |
|
1,031,366 |
|
175,290 |
|
30,588 |
|
29,244 |
|
2,152,127 |
Additions during the year |
|
— |
|
— |
|
— |
|
3,007 |
|
12,110 |
|
15,117 |
Additions through business combinations (note 31) |
|
— |
|
2,224 |
|
766 |
|
— |
|
— |
|
2,990 |
Disposals |
|
— |
|
(16,219) |
|
(1,758) |
|
(117) |
|
(14,928) |
|
(33,022) |
Exchange difference |
|
(134,613) |
|
(119,291) |
|
(13,619) |
|
(45) |
|
(4,670) |
|
(272,238) |
Reclassified to assets held for sale |
|
— |
|
— |
|
— |
|
— |
|
(271) |
|
(271) |
At December 31, 2023 |
|
751,026 |
|
898,080 |
|
160,679 |
|
33,433 |
|
21,485 |
|
1,864,703 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated amortization and impairment |
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2021 |
|
251 |
|
109,715 |
|
19,022 |
|
6,456 |
|
17,839 |
|
153,283 |
Charge for the year |
|
— |
|
29,037 |
|
4,237 |
|
978 |
|
3,914 |
|
38,166 |
Disposals |
|
— |
|
— |
|
— |
|
(15) |
|
(726) |
|
(741) |
Exchange difference |
|
— |
|
(7,184) |
|
(1,374) |
|
(542) |
|
(616) |
|
(9,716) |
At December 31, 2021 |
|
251 |
|
131,568 |
|
21,885 |
|
6,877 |
|
20,411 |
|
180,992 |
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2022 |
|
251 |
|
131,568 |
|
21,885 |
|
6,877 |
|
20,411 |
|
180,992 |
Charge for the year |
|
— |
|
36,169 |
|
6,936 |
|
2,598 |
|
1,627 |
|
47,330 |
Impairment charge for the year** |
|
121,596 |
|
— |
|
— |
|
— |
|
— |
|
121,596 |
Disposals |
|
— |
|
— |
|
— |
|
(4) |
|
(394) |
|
(398) |
Exchange difference |
|
404 |
|
(8,335) |
|
(1,245) |
|
(395) |
|
(313) |
|
(9,884) |
At December 31, 2022 |
|
122,251 |
|
159,402 |
|
27,576 |
|
9,076 |
|
21,331 |
|
339,636 |
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2023 |
|
122,251 |
|
159,402 |
|
27,576 |
|
9,076 |
|
21,331 |
|
339,636 |
Charge for the year |
|
— |
|
34,044 |
|
7,217 |
|
6,288 |
|
2,834 |
|
50,383 |
Disposals |
|
— |
|
(16,219) |
|
(1,758) |
|
(117) |
|
(13,328) |
|
(31,422) |
Exchange difference |
|
9,477 |
|
(43,850) |
|
(7,335) |
|
351 |
|
(4,827) |
|
(46,184) |
Reclassified to assets held for sale |
|
— |
|
— |
|
— |
|
— |
|
(38) |
|
(38) |
At December 31, 2023 |
|
131,728 |
|
133,377 |
|
25,700 |
|
15,598 |
|
5,972 |
|
312,375 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net book value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2021 |
|
779,896 |
|
746,196 |
|
85,317 |
|
10,829 |
|
3,387 |
|
1,625,625 |
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2022*** |
|
763,388 |
|
871,964 |
|
147,714 |
|
21,512 |
|
7,913 |
|
1,812,491 |
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2023 |
|
619,298 |
|
764,703 |
|
134,979 |
|
17,835 |
|
15,513 |
|
1,552,328 |
*Includes subsequent asset acquisitions on business combination transactions.
F-49
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
**The carrying amount of the IHS Latam tower businesses group of CGUs was reduced to its recoverable amount as at December 31, 2022 through the recognition of an impairment loss against goodwill. This loss is included in administrative expenses in the statement of profit or loss.
***Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
Network related intangible assets represent future income from leasing excess tower capacity to new tenants. Customer related intangible assets represent customer contracts and relationships.
Amortization expense has been included in cost of sales and administrative expenses in the statement of income and other comprehensive income:
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Cost of sales (note 7) |
|
44,618 |
|
42,050 |
|
34,051 |
Administrative expenses (note 8) |
|
5,765 |
|
5,280 |
|
4,115 |
|
|
50,383 |
|
47,330 |
|
38,166 |
15.1Allocation of goodwill
Management reviews the business performance based on the geographical location of business. It has identified IHS Nigeria Limited, INT Towers Limited, IHS Towers NG Limited, IHS Cameroon S.A., IHS Côte d’Ivoire S.A., IHS Rwanda Limited, IHS Zambia Limited, IHS Kuwait Limited, IHS South Africa Proprietary Limited, the IHS Latam tower businesses and I-Systems Soluções de Infraestrutura S.A. (“I-Systems”) as the main CGUs/Group of CGUs relevant for the allocation of goodwill. During 2023, the three CGUs in Nigeria were grouped together for purpose of impairment testing, as this reflects the level at which management reviews performance and manages its operations in the region. This group of CGUs is identified as IHS Nigeria. IHS Nigeria group of CGUs relate to the Nigeria operating segment, IHS Cameroon S.A, IHS Côte d’Ivoire S.A, IHS Zambia Limited, IHS South Africa Proprietary Limited and IHS Rwanda Limited CGUs related to the SSA operating segment, IHS Kuwait Limited CGU related to the MENA operating segment, and the IHS Latam tower businesses group of CGUs and the I-Systems CGU relate to the Latam operating segment.
F-50
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Goodwill is monitored by management at a CGU/group of CGU level as noted above. The following is a summary of goodwill allocation for each CGU.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effects of |
|
|
|
|
|
|
|
|
|
|
movements in |
|
|
|
|
Opening |
|
Additions through |
|
|
|
and exchange rates |
|
Closing |
|
|
balance |
|
business combinations |
|
Impairment |
|
other movements |
|
balance |
|
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
2023 |
|
|
|
|
|
|
|
|
|
|
IHS Nigeria |
|
299,457 |
|
— |
|
— |
|
(147,730) |
|
151,727 |
IHS Cameroon S.A. |
|
41,741 |
|
— |
|
— |
|
1,547 |
|
43,288 |
IHS Côte d’Ivoire S.A. |
|
20,701 |
|
— |
|
— |
|
767 |
|
21,468 |
IHS Zambia Limited |
|
46,718 |
|
— |
|
— |
|
(13,901) |
|
32,817 |
IHS Rwanda Limited |
|
11,186 |
|
— |
|
— |
|
(1,682) |
|
9,504 |
IHS Kuwait Limited |
|
12,223 |
|
— |
|
— |
|
(12) |
|
12,211 |
IHS South Africa Proprietary Limited |
|
58,832 |
|
— |
|
— |
|
(4,418) |
|
54,414 |
IHS Latam tower businesses |
|
187,572 |
|
— |
|
— |
|
14,957 |
|
202,529 |
I-Systems |
|
84,958 |
|
— |
|
— |
|
6,382 |
|
91,340 |
|
|
763,388 |
|
— |
|
— |
|
(144,090) |
|
619,298 |
2022 |
|
|
|
|
|
|
|
|
|
|
IHS Nigeria Limited |
|
59,768 |
|
— |
|
— |
|
(3,432) |
|
56,336 |
INT Towers Limited |
|
214,775 |
|
— |
|
— |
|
(12,316) |
|
202,459 |
IHS Towers NG Limited |
|
43,138 |
|
— |
|
— |
|
(2,476) |
|
40,662 |
IHS Cameroon S.A. |
|
44,388 |
|
— |
|
— |
|
(2,647) |
|
41,741 |
IHS Côte d’Ivoire S.A. |
|
22,012 |
|
— |
|
— |
|
(1,311) |
|
20,701 |
IHS Zambia Limited |
|
50,709 |
|
— |
|
— |
|
(3,991) |
|
46,718 |
IHS Rwanda Limited |
|
11,867 |
|
— |
|
— |
|
(681) |
|
11,186 |
IHS Kuwait Limited |
|
12,369 |
|
— |
|
— |
|
(146) |
|
12,223 |
IHS South Africa Proprietary Limited* |
|
— |
|
64,394 |
|
— |
|
(5,562) |
|
58,832 |
IHS Latam tower businesses |
|
241,451 |
|
54,641 |
|
(121,596) |
|
13,076 |
|
187,572 |
I-Systems |
|
79,419 |
|
— |
|
— |
|
5,539 |
|
84,958 |
|
|
779,896 |
|
119,035 |
|
(121,596) |
|
(13,947) |
|
763,388 |
2021 |
|
|
|
|
|
|
|
|
|
|
IHS Nigeria Limited |
|
63,374 |
|
— |
|
— |
|
(3,606) |
|
59,768 |
INT Towers Limited |
|
227,715 |
|
— |
|
— |
|
(12,940) |
|
214,775 |
IHS Towers NG Limited |
|
45,741 |
|
— |
|
— |
|
(2,603) |
|
43,138 |
IHS Cameroon S.A. |
|
48,170 |
|
— |
|
— |
|
(3,782) |
|
44,388 |
IHS Côte d’Ivoire S.A. |
|
23,888 |
|
— |
|
— |
|
(1,876) |
|
22,012 |
IHS Zambia Limited |
|
39,907 |
|
— |
|
— |
|
10,802 |
|
50,709 |
IHS Rwanda Limited |
|
12,319 |
|
— |
|
— |
|
(452) |
|
11,867 |
IHS Kuwait Limited |
|
13,142 |
|
— |
|
— |
|
(773) |
|
12,369 |
IHS Latam tower businesses |
|
182,000 |
|
75,034 |
|
— |
|
(15,583) |
|
241,451 |
I-Systems |
|
— |
|
81,783 |
|
— |
|
(2,364) |
|
79,419 |
|
|
656,256 |
|
156,817 |
|
— |
|
(33,177) |
|
779,896 |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
The recoverable amount of each CGU, except for the IHS Latam tower businesses group of CGUs and the I-Systems CGU, was determined based on value in use calculations. The recoverable amount of the IHS Latam tower businesses group of CGUs and the I-Systems CGU was determined based on fair value less costs of disposal.
(a)Recoverable amounts based on value in use
These calculations used pre-tax local currency cash flow projections based on the financial budgets approved by management covering a five-year period. Within the five-year period, revenue growth assumptions are based on past experience and expected future developments in the Group’s CGUs.
F-51
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Cash flows beyond the five-year period were valued using the estimated terminal growth rates stated below.
The key assumptions to which the value-in-use calculations are most sensitive are:
| ● | Revenue growth assumptions (taking into account tenancy ratios), and the direct effect these have on gross profit margins in the five-year forecast period; |
| ● | pre-tax weighted average cost of capital; |
| ● | gross margins; and |
| ● | terminal growth rates. |
|
|
Pre-tax weighted |
|
Terminal |
|
Tenancy |
|
Gross margins |
|
|||||
|
|
of capital |
|
growth rate |
|
Ratio |
* |
amortization |
* |
|||||
2023 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IHS Nigeria |
|
29.5 |
% |
4.0 |
% |
4.05 |
x - |
8.32 |
x |
|
54.4 |
% - |
75.5 |
% |
IHS Cameroon S.A. |
|
14.1 |
% |
4.0 |
% |
2.64 |
x - |
2.94 |
x |
|
55.0 |
% - |
59.2 |
% |
IHS Côte d’Ivoire S.A. |
|
10.8 |
% |
4.0 |
% |
3.40 |
x - |
4.04 |
x |
|
48.9 |
% - |
56.7 |
% |
IHS Zambia Limited |
|
26.4 |
% |
4.0 |
% |
2.63 |
x - |
3.11 |
x |
|
64.0 |
% - |
70.2 |
% |
IHS Rwanda Limited |
|
17.1 |
% |
4.0 |
% |
1.69 |
x - |
2.58 |
x |
|
66.1 |
% - |
72.6 |
% |
IHS South Africa Proprietary Limited |
|
15.1 |
% |
4.0 |
% |
1.40 |
x - |
2.94 |
x |
|
42.5 |
% - |
50.3 |
% |
IHS Kuwait Limited |
|
7.6 |
% |
2.8 |
% |
1.01 |
x - |
2.00 |
x |
|
63.6 |
% - |
71.8 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IHS Nigeria Limited |
|
24.4 |
% |
3.2 |
% |
3.76 |
x - |
7.74 |
x |
|
62.5 |
% - |
78.7 |
% |
INT Towers Limited |
|
25.4 |
% |
3.2 |
% |
3.93 |
x - |
4.79 |
x |
|
61.7 |
% - |
74.0 |
% |
IHS Towers NG Limited |
|
24.9 |
% |
3.2 |
% |
3.65 |
x - |
4.73 |
x |
|
65.3 |
% - |
72.3 |
% |
IHS Cameroon S.A. |
|
13.7 |
% |
4.0 |
% |
2.56 |
x - |
3.10 |
x |
|
56.6 |
% - |
65.5 |
% |
IHS Côte d’Ivoire S.A. |
|
11.0 |
% |
4.0 |
% |
3.35 |
x - |
4.00 |
x |
|
54.8 |
% - |
61.5 |
% |
IHS Zambia Limited |
|
30.2 |
% |
4.0 |
% |
2.61 |
x - |
3.24 |
x |
|
65.4 |
% - |
72.8 |
% |
IHS Rwanda Limited |
|
18.1 |
% |
4.0 |
% |
2.04 |
x - |
2.64 |
x |
|
69.0 |
% - |
73.2 |
% |
IHS South Africa Proprietary Limited |
|
13.9 |
% |
3.3 |
% |
1.25 |
x - |
2.28 |
x |
|
42.9 |
% - |
66.4 |
% |
IHS Kuwait Limited |
|
6.3 |
% |
3.6 |
% |
1.01 |
x - |
1.53 |
x |
|
56.6 |
% - |
62.6 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2021 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IHS Nigeria Limited |
|
16.1 |
% |
2.7 |
% |
3.32 |
x - |
5.18 |
x |
|
64.2 |
% - |
79.7 |
% |
INT Towers Limited |
|
16.0 |
% |
2.7 |
% |
3.56 |
x - |
4.98 |
x |
|
67.4 |
% - |
74.9 |
% |
IHS Towers NG Limited |
|
16.5 |
% |
2.7 |
% |
3.63 |
x - |
4.44 |
x |
|
52.3 |
% - |
63.1 |
% |
IHS Cameroon S.A. |
|
12.1 |
% |
3.2 |
% |
2.37 |
x - |
2.89 |
x |
|
57.8 |
% - |
64.6 |
% |
IHS Côte d’Ivoire S.A. |
|
9.8 |
% |
3.2 |
% |
3.45 |
x - |
4.46 |
x |
|
53.8 |
% - |
63.5 |
% |
IHS Zambia Limited |
|
24.1 |
% |
2.0 |
% |
2.40 |
x - |
3.30 |
x |
|
65.2 |
% - |
74.6 |
% |
IHS Rwanda Limited |
|
15.5 |
% |
3.2 |
% |
2.04 |
x - |
2.97 |
x |
|
67.0 |
% - |
73.3 |
% |
IHS Kuwait Limited |
|
6.0 |
% |
2.9 |
% |
1.00 |
x - |
1.46 |
x |
|
52.4 |
% - |
64.9 |
% |
*Tenancy ratios and gross margins (excluding depreciation & amortization) disclosed are for the forecast period 2024 – 2028. The tenancy ratios refer to the average number of tenants plus lease amendments (also including extra power and space) per tower that is owned or operated across a tower portfolio at a given point in time.
F-52
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Management has considered and assessed reasonably possible changes for key assumptions on all markets. Any one of the following changes in assumptions could represent a reasonably possible scenario:
| - | 1% increase in the post-tax discount rate |
| - | 1% decrease in the terminal growth rate |
| - | 50% decrease in tenancy growth |
| - | 10% decrease in gross margin |
CGUs that will have an impairment due to any of the individual reasonably possible change scenarios listed above are as follows:
|
|
1% increase |
|
1% decrease |
|
50% decrease |
|
10% decrease |
|
|
in post-tax |
|
in terminal |
|
in tenancy |
|
in gross |
|
|
discount rate |
|
growth rate |
|
growth |
|
margin |
|
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
2023 |
|
|
|
|
|
|
|
|
IHS Zambia Limited |
|
— |
|
— |
|
— |
|
8,505 |
|
|
|
|
|
|
|
|
|
2022 |
|
|
|
|
|
|
|
|
IHS South Africa Proprietary Limited |
|
68,724 |
|
45,732 |
|
155,908 |
|
77,017 |
The changes that would cause an impairment for the other CGUs are set out below:
Sensitivity analysis
|
|
|
|
IHS |
|
|
|
|
|
|
|
|
|
|
|
|
|
Cameroon |
|
IHS Côte |
|
IHS Rwanda |
|
IHS South Africa |
|
IHS Kuwait |
|
|
|
IHS Nigeria |
|
S.A. |
|
d’Ivoire S.A. |
|
Limited |
|
Proprietary Limited |
|
Limited |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
% Rise in discount rate |
|
Increase by 47.3pp |
|
Increase by 4.7pp |
|
Increase by 6.4pp |
|
Increase by 11.7pp |
|
Increase by 3.1pp |
|
Increase by 7.3pp |
|
Decrease in tenancy ratio |
|
Decrease by an average of 1.36x over 4 years |
|
Decrease by an average of 0.39x over 4 years |
|
Decrease by an average of 0.80x over 4 years |
|
Decrease by an average of 0.52x over 4 years |
|
Decrease by an average of 0.40x over 4 years |
|
Decrease by an average of 0.67x over 4 years |
|
Gross margin (excluding depreciation and amortization) |
|
Decrease by an average of 19.80x over 4 years |
|
Decrease by an average of 10.0pp over 4 years |
|
Decrease by an average of 15.4pp over 4 years |
|
Decrease by an average of 19.9pp over 4 years |
|
Decrease by an average of 8.4pp over 4 years |
|
Decrease by an average of 33.2pp over 4 years |
|
Decrease in terminal growth rate |
|
Decrease to less than 0% |
|
Decrease to less than 0% |
|
Decrease to less than 0% |
|
Decrease to less than 0% |
|
Decrease to less than 0% |
|
Decrease to less than 0% |
|
(b)Recoverable amount based on fair values less costs of disposal
The recoverable amounts of the IHS Latam tower businesses group of CGUs and the I-Systems CGU were based on fair value less costs of disposal.
Fair value less costs of disposal is determined on the basis of the income approach, discounting estimated future net local currency cash flows that reflects current market expectations (Level 3).
F-53
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
The key assumptions to which the fair value less costs of disposal calculation for the Latam tower businesses are most sensitive are:
| ● | revenue growth assumptions (taking into account tenancy growth) and the direct effect these have on gross profit margins in the ten-year forecast period for the IHS Latam tower businesses group of CGUs; |
| ● | revenue growth assumptions (including homes connected) and the direct effect these have on gross profit margins in the ten-year forecast period for the I-Systems CGU; |
| ● | discount rates (being post-tax weighted average cost of capital); |
| ● | estimated costs of disposal based on management’s experience of previously completed business combinations; and |
| ● | terminal growth rates. |
|
|
Discount |
|
Terminal |
|
Tenancy |
|
Homes |
|
Cost of |
|
2023 |
|
|
|
|
|
|
|
|
|
|
|
IHS Latam tower businesses |
|
11.0 |
% |
4.4 |
% |
6.4 |
% |
n.a |
|
0.5 |
% |
I-Systems |
|
10.7 |
% |
4.4 |
% |
n.a |
|
1 million - 3.1 million |
|
0.5 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
2022 |
|
|
|
|
|
|
|
|
|
|
|
IHS Latam tower businesses |
|
10.1 |
% |
4.1 |
% |
9.8 |
% |
n.a |
|
0.5 |
% |
I-Systems |
|
9.6 |
% |
4.3 |
% |
n.a |
|
1 million - 3.6 million |
|
0.5 |
% |
*Tenancy growth disclosed is for the average annual growth rate for tenancies over the forecast period 2024 – 2033.
An impairment loss of $Nil (2022: $121.6 million) was recognized in the IHS Latam Tower business group of CGUs due to macroeconomic conditions which have deteriorated over the last year, increasing the discount rate, and a reduction in the cash flows in the outer years of the forecast used for impairment testing.
Management has determined the reasonably possible changes in key assumptions as follows:
| - | 1% increase in the post-tax discount rate |
| - | 1% decrease in the terminal growth rate |
| - | 15% decrease in tenancy growth |
| - | 15% decrease in growth in homes connected |
F-54
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
For the Latam Towers businesses group of CGUs these reasonably possible change scenarios would individually result in an impairment charge (2022: individually increase the impairment charge) as follows:
|
|
1% increase |
|
1% decrease |
|
15% decrease |
|
|
in post tax |
|
in terminal |
|
in tenancy |
|
|
discount rate |
|
growth rate |
|
growth |
|
|
$'000 |
|
$'000 |
|
$'000 |
2023 |
|
|
|
|
|
|
IHS Latam Towers businesses |
|
139,955 |
|
71,817 |
|
88,368 |
|
|
|
|
|
|
|
2022 |
|
|
|
|
|
|
IHS Latam Towers businesses |
|
174,000 |
|
108,000 |
|
113,000 |
For the I-Systems CGU management has concluded that no reasonably possible scenario could give rise to an impairment.
16.Deferred income tax
|
|
2023 |
|
2022 |
* |
|
|
$’000 |
|
$'000 |
|
|
|
|
|
|
|
Deferred income tax assets |
|
63,786 |
|
78,369 |
|
Deferred income tax liabilities |
|
(137,106) |
|
(183,518) |
|
Net deferred tax liabilities |
|
(73,320) |
|
(105,149) |
|
Deferred tax assets and liabilities are offset when there is a legally enforceable right to set off current tax assets against current tax liabilities and when the deferred income taxes relate to the same fiscal authority and are classified on a net basis within either deferred tax assets or deferred tax liabilities. These net country amounts are aggregated according to their asset or liability position and presented as then aggregated in the statement of financial position:
|
|
2023 |
|
2022 |
* |
|
|
$’000 |
|
$'000 |
|
Deferred income tax assets |
|
|
|
|
|
Property, plant and equipment** |
|
(4,807) |
|
(7,137) |
|
Intangible assets |
|
23,386 |
|
20,313 |
|
Provisions** |
|
3,490 |
|
14,574 |
|
Tax losses |
|
30,668 |
|
28,443 |
|
Right of use asset** |
|
(73,400) |
|
(53,820) |
|
Lease liability** |
|
84,886 |
|
65,419 |
|
Other** |
|
(437) |
|
10,577 |
|
Total |
|
63,786 |
|
78,369 |
|
F-55
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
|
|
2023 |
|
2022 |
* |
|
|
$'000 |
|
$'000 |
|
Deferred income tax liabilities |
|
|
|
|
|
Property, plant and equipment** |
|
(107,444) |
|
(165,602) |
|
Intangible assets |
|
(168,133) |
|
(197,932) |
|
Provisions** |
|
46,734 |
|
57,075 |
|
Unrealized derivative income |
|
20,194 |
|
(337) |
|
Timing differences on loans |
|
4,100 |
|
19,071 |
|
Unrealized foreign exchange |
|
14,719 |
|
12,150 |
|
Tax losses |
|
21,676 |
|
11,164 |
|
Unutilized capital allowances |
|
30,085 |
|
79,110 |
|
Right of use asset** |
|
(42,299) |
|
(81,987) |
|
Lease liability** |
|
49,676 |
|
88,255 |
|
Other** |
|
(6,414) |
|
(4,485) |
|
Total |
|
(137,106) |
|
(183,518) |
|
The Group recognizes deferred tax assets to the extent that it is probable that sufficient future taxable profits will arise against which these deductible temporary differences can be utilized. As of December 31, 2023, a net deferred tax asset of $57.9 million has been recognized with respect to the Brazil tower business, which includes tax losses and other deductible temporary differences. The Group has performed an assessment of recovery of deferred tax assets for this entity using forecasted future taxable profits and considers that it is probable that sufficient future taxable profits will arise against which these losses and deductible temporary differences can be utilized.
Deferred tax is measured at the tax rates that are expected to be applied to temporary differences when they reverse, using tax rates enacted or substantively enacted at the reporting date, and reflects uncertainty related to income taxes, if any.
|
|
|
|
|
|
|
|
|
|
Other including |
|
|
|
|
|
|
|
|
|
|
Provisions/ |
|
|
|
|
|
Unrealized |
|
|
|
|
|
|
|
|
Property, |
|
share‑based |
|
|
|
|
|
exchange |
|
|
|
|
|
|
|
|
plant and |
|
payments |
|
Intangible |
|
Loans and |
|
differences |
|
Right of use |
|
Lease |
|
|
|
|
equipment |
** |
obligation |
** |
assets |
|
derivatives |
|
/tax losses |
** |
asset |
** |
liability |
** |
Total |
Net deferred income tax |
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2021 |
|
(168,784) |
|
81,846 |
|
(191,887) |
|
(26,054) |
|
135,529 |
|
(136,986) |
|
142,595 |
|
(163,741) |
Additions through business combinations |
|
(6,065) |
|
— |
|
(73,330) |
|
— |
|
— |
|
— |
|
— |
|
(79,395) |
Tax (charge)/income |
|
(2,185) |
|
(7,659) |
|
85,254 |
|
9,295 |
|
(11,895) |
|
(11,368) |
|
12,274 |
|
73,716 |
Effects of movement in exchange rates |
|
11,014 |
|
(4,759) |
|
13,806 |
|
1,874 |
|
(10,181) |
|
9,508 |
|
(9,897) |
|
11,365 |
At December 31, 2021 |
|
(166,020) |
|
69,428 |
|
(166,157) |
|
(14,885) |
|
113,453 |
|
(138,846) |
|
144,972 |
|
(158,055) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2022 |
|
(166,020) |
|
69,428 |
|
(166,157) |
|
(14,885) |
|
113,453 |
|
(138,846) |
|
144,972 |
|
(158,055) |
Additions through business combinations (note 31)* |
|
(61,184) |
|
— |
|
(76,680) |
|
— |
|
— |
|
— |
|
— |
|
(137,864) |
Tax income* |
|
49,634 |
|
3,859 |
|
59,702 |
|
33,127 |
|
26,044 |
|
8,752 |
|
2,737 |
|
183,855 |
Effects of movement in exchange rates* |
|
4,831 |
|
(1,638) |
|
5,516 |
|
492 |
|
(2,538) |
|
(5,713) |
|
5,965 |
|
6,915 |
At December 31, 2022 |
|
(172,739) |
|
71,649 |
|
(177,619) |
|
18,734 |
|
136,959 |
|
(135,807) |
|
153,674 |
|
(105,149) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2023 |
|
(172,739) |
|
71,649 |
|
(177,619) |
|
18,734 |
|
136,959 |
|
(135,807) |
|
153,674 |
|
(105,149) |
Additions through business combinations (note 31) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Tax income/(charge) |
|
24,045 |
|
(8,943) |
|
(9,239) |
|
10,002 |
|
(14,195) |
|
(12,090) |
|
17,322 |
|
6,902 |
Effects of movement in exchange rates |
|
36,443 |
|
(12,482) |
|
42,111 |
|
(4,442) |
|
(32,467) |
|
32,198 |
|
(36,434) |
|
24,927 |
At December 31, 2023 |
|
(112,251) |
|
50,224 |
|
(144,747) |
|
24,294 |
|
90,297 |
|
(115,699) |
|
134,562 |
|
(73,320) |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
**Re-presented following adoption of IAS 12. Refer to note 2.1.1 above for further information.
F-56
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Deferred income tax assets are recognized for deductible temporary differences and tax losses carried forward only to the extent that the realization of the related tax benefits are expected to be met through the reversal of taxable temporary differences and future taxable profits. The Group has $2.4 billion (2022: $1.8 billion, 2021: $1.8 billion) in deductible temporary differences for which no deferred tax is recognized. The amounts due to expire primarily relate to excess finance costs in Nigeria. Amounts due to expire on December 31, 2024, December 31, 2025, December 31, 2026 and December 31, 2027, respectively, are as follows: $91.1 million (2022: $222.3 million, 2021: $230.9 million), $138.9 million (2022: $180.0 million, 2021: $191.0 million), $63.6 million (2022: $274.3 million, 2021: $298.1) and $39.4 million (2022: $99.4 million, 2021: $Nil).
As of December 31, 2023, 2022 and 2021, there were $6.5 million, $122.2 million and $104.9 million, respectively, of temporary differences associated with undistributed earnings of subsidiaries, of which deferred tax liabilities have not been recognized.
17.Inventories
|
|
2023 |
|
2022 |
|
|
$'000 |
|
$'000 |
|
|
|
|
|
Stock of materials |
|
40,589 |
|
74,216 |
Inventories are measured at lower of cost and net realizable value. Diesel is held at cost and consumables are held at cost less provision for obsolescence. During the year, an inventory write-down expense of $0.4 million was recognized (2022: $1.7 million, 2021: $0.1 million). The value of inventory recognized as an expense during the year is $321.4 million (2022: $371.8 million, 2021: $267.5 million).
18.Derivative financial instruments
The derivative instruments have been classified as fair value through profit or loss. The instruments are measured at fair value with the resultant gains or losses recognized in the statement of loss and other comprehensive income/(loss). The related net foreign exchange gain/(loss) is included in finance income (note 10) and finance costs (note 11).
The underlying contractual notional amount for the derivative instruments is as follows, as of December 31, of each of the following years:
|
|
2023 |
|
2022 |
|
|
$'000 |
|
$'000 |
Derivative instruments |
|
|
|
|
Foreign exchange swaps* |
|
125,000 |
|
160,448 |
Embedded options within listed bonds |
|
1,940,000 |
|
1,940,000 |
|
|
2,065,000 |
|
2,100,448 |
*Note that these foreign exchange swaps are expected to be settled in the next 12 months from December 31, 2023.
The fair value balances are as follows:
|
|
2023 |
|
2022 |
|
|
$'000 |
|
$'000 |
Derivative instruments |
|
|
|
|
Foreign exchange swaps |
|
(68,133) |
|
(1,393) |
Interest rate caps |
|
565 |
|
821 |
Embedded options within listed bonds |
|
1,540 |
|
5,300 |
|
|
(66,028) |
|
4,728 |
F-57
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
The change in fair value of the derivative instruments has been recorded in the statement of loss and other comprehensive income/(loss) as follows:
|
|
2023 |
|
2022 |
|
2021 |
|
|
$'000 |
|
$'000 |
|
$'000 |
Derivative instruments |
|
|
|
|
|
|
Foreign exchange swaps/non‑deliverable forwards |
|
(92,151) |
|
(1,599) |
|
(3,897) |
Interest rate caps |
|
163 |
|
(89) |
|
— |
Embedded options within listed bonds |
|
(3,760) |
|
(159,889) |
|
604 |
Embedded options within revenue contracts |
|
— |
|
— |
|
7,231 |
|
|
(95,748) |
|
(161,577) |
|
3,938 |
The credit ratings of the Group’s derivative financial instrument assets at December 31, 2023 and 2022 based on publicly reported Fitch ratings were:
|
|
2023 |
|
2022 |
|
|
$'000 |
|
$'000 |
Derivative financial instrument assets |
|
|
|
|
Not rated |
|
2,105 |
|
6,121 |
|
|
2,105 |
|
6,121 |
Refer to note 4(a) for further information on the derivative financial instruments.
Reconciliation of movements
|
|
2023 |
|
2022 |
|
|
$'000 |
|
$'000 |
Foreign exchange swaps/non-deliverable forwards |
|
|
|
|
Opening balance |
|
(1,393) |
|
(3,771) |
Fair value loss (unrealized foreign exchange on open contracts) |
|
(92,151) |
|
(1,599) |
Foreign exchange gain |
|
25,831 |
|
780 |
Cash flow on settlement |
|
(420) |
|
3,197 |
|
|
(68,133) |
|
(1,393) |
F-58
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
19.Trade and other receivables
|
|
2023 |
|
2022 |
|
|
$’000 |
|
$'000 |
Current |
|
|
|
|
Trade receivables |
|
233,528 |
|
236,390 |
Less: impairment provisions |
|
(21,205) |
|
(25,365) |
Net trade receivables* |
|
212,323 |
|
211,025 |
Other receivables** |
|
317,452 |
|
387,019 |
Prepaid land rent |
|
1,016 |
|
1,030 |
Other prepaid expenses |
|
29,979 |
|
26,820 |
Advance payments |
|
33,364 |
|
22,076 |
Withholding tax receivables |
|
1,362 |
|
1,201 |
VAT receivables |
|
12,339 |
|
14,296 |
|
|
607,835 |
|
663,467 |
Non-current |
|
|
|
|
Accrued income and lease incentive |
|
71,891 |
|
35,321 |
Other tax receivables |
|
7,116 |
|
5,945 |
Payment in advance for property, plant and equipment |
|
61,874 |
|
83,118 |
Contingent consideration receivable*** |
|
6,411 |
|
5,963 |
|
|
147,292 |
|
130,347 |
*The fair value is equal to their carrying amount.
**Included in other receivables are short-term fixed deposits which are not classified as cash and cash equivalents as it exceeds the three-month maturity period.
***Receivable on the I-Systems Soluções de Infraestrutura S.A. acquisition. The balance increased since acquisition due to foreign exchange movements.
Included in trade receivables is $84.9 million (2022: $86.2 million, 2021: $103.4 million) relating to accrued revenue of which $19.5 million (2022: $17.7 million, 2021: $22.2 million) relates to contract assets, with the remainder being accrued lease rental income.
Payment in advance for property, plant and equipment relates to the future supply of tower and tower equipment and fiber assets. All non-current receivables are due within twenty years from the end of the reporting period. All current trade and other receivables are due within 12 months from the end of the reporting period. The Group does not secure any collateral for its trade receivables. Refer to note 4 (c) for further information on trade and other receivables.
Prepaid land rent is capitalized to the right of use asset insofar as it relates to leases accounted for under IFRS 16. The prepaid land rent for leases that are exempt from being accounted for under IFRS 16 under the Group’s accounting policy are accounted for as short-term prepayments.
20.Cash and cash equivalents
|
|
2023 |
|
2022 |
|
|
$’000 |
|
$'000 |
|
|
|
|
|
Cash at bank |
|
293,823 |
|
514,078 |
Cash and cash equivalents |
|
293,823 |
|
514,078 |
F-59
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
The credit ratings of the Group’s principal banking partners at December 31, 2023 and 2022 based on publicly reported Fitch ratings as shown below. The Group regularly monitors its credit risk with banking partners and did not incur any losses during 2023 and 2022 as a result of bank failures.
|
|
2023 |
|
2022 |
|
|
$’000 |
|
$'000 |
Cash and cash equivalents |
|
|
|
|
AAA (F1+) |
|
16,030 |
|
20,916 |
AA |
|
2 |
|
— |
A+ |
|
15,686 |
|
22,790 |
A (F1) |
|
67,505 |
|
244,483 |
A- |
|
216 |
|
— |
BBB+ |
|
15,889 |
|
506 |
BBB- |
|
88 |
|
115 |
B+ |
|
7,611 |
|
— |
B |
|
169,517 |
|
217,335 |
B- |
|
— |
|
7,242 |
Not rated |
|
1,279 |
|
691 |
|
|
293,823 |
|
514,078 |
21.Trade and other payables
|
|
2023 |
|
2022 |
|
|
$’000 |
|
$'000 |
Current |
|
|
|
|
Trade payables |
|
330,622 |
|
442,959 |
Deferred revenue |
|
41,462 |
|
86,363 |
Withholding tax payable |
|
3,555 |
|
5,820 |
Payroll and other related statutory liabilities |
|
46,282 |
|
45,331 |
VAT payables |
|
37,829 |
|
51,103 |
Other payables |
|
72,877 |
|
37,573 |
|
|
532,627 |
|
669,149 |
|
|
|
|
|
Non-current |
|
|
|
|
Other payables |
|
4,629 |
|
1,459 |
|
|
4,629 |
|
1,459 |
Included in deferred revenue is $7.9 million (2022: $22.9 million, 2021: $2.8 million) which relates to contract liabilities.
The contract liabilities relating to December 31, 2022 were fully recognized in revenue during the year end December 31, 2023.
F-60
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
22.Borrowings
|
|
2023 |
|
2022 |
|
|
$’000 |
|
$'000 |
Non-current |
|
|
|
|
Senior Notes |
|
1,930,457 |
|
1,920,783 |
Bank borrowings |
|
1,126,239 |
|
985,505 |
|
|
3,056,696 |
|
2,906,288 |
|
|
|
|
|
Current |
|
|
|
|
Senior Notes |
|
26,912 |
|
27,060 |
Bank borrowings |
|
107,110 |
|
213,576 |
Bank overdraft |
|
675 |
|
— |
Letters of credit |
|
319,454 |
|
197,478 |
|
|
454,151 |
|
438,114 |
|
|
|
|
|
Total borrowings |
|
3,510,847 |
|
3,344,402 |
Reconciliation of cash and non-cash changes
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
Opening balance – January 1 |
|
3,344,402 |
|
2,609,090 |
|
2,203,209 |
Additions through business combination |
|
— |
|
— |
|
6,457 |
Interest expense (note 11) |
|
362,381 |
|
256,208 |
|
174,876 |
Interest paid |
|
(299,029) |
|
(234,567) |
|
(168,285) |
Bank loans and bond proceeds received (net of transaction costs) |
|
985,992 |
|
1,263,272 |
|
1,076,063 |
Bank loans and bonds repaid |
|
(689,940) |
|
(506,504) |
|
(653,504) |
Bank overdraft |
|
612 |
|
— |
|
3,208 |
Other transaction costs |
|
(19,441) |
|
(19,911) |
|
(38,597) |
Foreign exchange and other movements |
|
(174,130) |
|
(23,186) |
|
5,663 |
Closing balance – December 31 |
|
3,510,847 |
|
3,344,402 |
|
2,609,090 |
F-61
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
22.1Analysis of borrowings
Debt is made up of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
2023 |
|
2022 |
|
|
Currency |
|
Maturity date |
|
Interest rate |
|
$’000 |
|
$’000 |
|||||
Senior Notes |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IHS Holding Limited |
|
US Dollar |
|
|
|
2026 |
|
|
|
5.63 |
% |
|
498,920 |
|
497,861 |
IHS Holding Limited |
|
US Dollar |
|
|
|
2028 |
|
|
|
6.25 |
% |
|
498,635 |
|
497,979 |
IHS Netherlands Holdco B.V. |
|
US Dollar |
|
|
|
2027 |
|
|
|
8.00 |
% |
|
959,814 |
|
952,003 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bank borrowings |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IHS Holding Term Loan |
|
US Dollar |
|
|
|
2025 |
|
|
|
3.75 |
% + CAS + 3M SOFR |
|
370,935 |
|
368,630 |
IHS (Nigeria) Limited |
|
Nigerian Naira |
|
|
|
2023 |
|
|
|
12.50 |
- 18.00% |
|
— |
|
57,448 |
INT Towers Ltd |
|
Nigerian Naira |
|
|
|
2024 |
|
|
|
2.50 |
% + 3M NIBOR |
|
— |
|
191,188 |
INT Towers Ltd |
|
Nigerian Naira |
|
|
|
2028 |
|
|
|
20.00 |
% |
|
186,302 |
|
— |
IHS Côte d'Ivoire Ltd |
|
CFA Franc |
|
|
|
2024 |
|
|
|
5.00 |
% |
|
6,570 |
|
18,854 |
IHS Côte d'Ivoire Ltd |
|
Euro |
|
|
|
2024 |
|
|
|
3.00 |
% + 3M EURIBOR |
|
4,841 |
|
14,217 |
IHS Zambia Ltd |
|
US Dollar |
|
|
|
2027 |
|
|
|
5.00 |
% + CAS + 3M SOFR |
|
81,297 |
|
94,596 |
IHS Brasil - Cessão de Infraestruturas S.A. |
|
Brazilian Real |
|
|
|
2031 |
|
|
|
3.10 |
% + CDI |
|
252,341 |
|
— |
IHS Brasil - Cessão de Infraestruturas S.A. |
|
Brazilian Real |
|
|
|
2029 |
|
|
|
3.65 |
% + CDI |
|
— |
|
68,591 |
IHS Brasil - Cessão de Infraestruturas S.A. |
|
Brazilian Real |
|
|
|
2028 |
|
|
|
3.05 |
% + CDI |
|
— |
|
82,928 |
I-Systems Soluções de Infraestrutura S.A. |
|
Brazilian Real |
|
|
|
2030 |
|
|
|
2.45 |
- 2.50% + CDI |
|
84,305 |
|
38,542 |
IHS Kuwait Limited |
|
Kuwait Dinar |
|
|
|
2029 |
|
|
|
2.00 |
% + 3M KIBOR |
|
61,354 |
|
66,251 |
IHS Towers South Africa Proprietary Limited |
|
South African Rand |
|
|
|
2029 |
|
|
|
2.75 |
% + 3M JIBAR |
|
185,404 |
|
197,836 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bank overdraft |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IHS Towers South Africa Proprietary Limited |
|
South African Rand |
|
|
|
2024 |
|
|
|
11.50 |
% |
|
675 |
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Letters of credit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IHS (Nigeria) Limited |
|
US Dollar |
|
|
|
2024 |
|
|
|
12.00 |
- 15.55% |
|
98,918 |
|
66,047 |
INT Towers Ltd |
|
US Dollar |
|
|
|
2024 |
|
|
|
12.00 |
- 15.75% |
|
219,418 |
|
128,063 |
ITNG Limited |
|
US Dollar |
|
|
|
2024 |
|
|
|
15.49 |
% |
|
23 |
|
987 |
Global Independent Connect Limited |
|
US Dollar |
|
|
|
2024 |
|
|
|
13.25 |
- 15.49% |
|
1,095 |
|
1,330 |
Global Independent Connect Limited |
|
Chinese Yuan |
|
|
|
2023 |
|
|
|
12.05 |
% |
|
— |
|
1,051 |
|
|
|
|
|
|
|
|
|
|
|
|
|
3,510,847 |
|
3,344,402 |
i.Bank borrowings – new facilities, facility amendments and drawdowns during the reporting period
The Group is in compliance with the restrictive debt covenants related to the listed bonds and covenants related to external borrowings as at the year end. Approximate U.S. dollar equivalent values for non-USD denominated facilities stated below are translated from the currency of the debt at the relevant exchange rates on December 31, 2023.
F-62
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
IHS Holding (2020) Revolving Credit Facility
IHS Holding Limited is party to a $300.0 million revolving credit facility agreement, originally entered into in March 2020 (as amended and/or restated from time to time, including pursuant to an amendment and restatement agreement entered into in June 2021 and November 2023) (the “IHS Holding RCF”) and entered into between, amongst others, IHS Holding Limited as borrower, IHS Netherlands Holdco B.V., IHS Netherlands NG1 B.V., IHS Towers NG Limited, IHS Netherlands NG2 B.V., Nigeria Tower Interco B.V., INT Towers Limited and IHS Nigeria as guarantors, Citibank Europe PLC, UK Branch as facility agent and certain financial institutions listed therein as original lenders.
In July 2023, the available commitments were increased to $300.0 million pursuant to the facility increase clause contained within the IHS Holding RCF. In November 2023, the IHS Holding RCF was further amended and restated to, among other things, extend the termination date to October 30, 2026.
As of December 31, 2023, there are no amounts drawn and outstanding under the IHS Holding RCF.
IHS Holding (2022) Bullet Term Loan Facility
IHS Holding Limited entered into a $600.0 million term loan agreement in October 2022 (as amended and/or restated from time to time, the “IHS Holding 2022 Term Loan”), between, amongst others, IHS Holding Limited as borrower, Citibank Europe plc, UK Branch as facility agent and certain financial institutions listed therein as original lenders. The loan is guaranteed by IHS Netherlands Holdco B.V., IHS Netherlands NG1 B.V., IHS Towers NG Limited, IHS Netherlands NG2 B.V., Nigeria Tower Interco B.V., INT Towers Limited and IHS Nigeria.
In October 2023, the available commitments under the IHS Holding 2022 Term Loan were voluntarily reduced by $100.0 million and the availability period on the remaining balance in available commitments was extended to April 2024 from October 2023.
As of December 31, 2023, $370.0 million of the IHS Holding 2022 Term Loan was drawn down. The majority of the drawn proceeds have been applied toward the prepayment of the IHS Holding Bridge Facility and the U.S. dollar tranche of the Nigeria 2019 Facility. The undrawn portion as at year end of $130.0 million can be applied toward general corporate purposes.
Nigeria (2023) Term Loan
IHS Netherlands Holdco B.V., IHS Nigeria, IHS Towers NG Limited, INT Towers and IHS Holding Limited entered into an up to NGN 165.0 billion (approximately $181.0 million) term loan agreement in January 2023 (as amended and/or restated from time to time the “Nigeria 2023 Term Loan”), and between, amongst others, IHS Netherlands Holdco B.V. as holdco and guarantor; IHS Towers NG Limited and INT Towers as borrowers; each of IHS Holding Limited, IHS Netherlands NG1 B.V., IHS Nigeria, IHS Netherlands NG2 B.V., and Nigeria Tower Interco B.V. as guarantors; Ecobank Nigeria Limited as agent and certain financial institutions listed therein as original lenders.
The interest rate per annum is equal to 20% in the first year moving to a floating rate for the remainder of the term. This floating rate is defined by the Nigerian MPR plus a margin of 2.5% and is subject to a cap of 24% and floor of 18%. IHS Netherlands Holdco B.V. also pays certain other fees and costs, including agent fees.
The Nigeria 2023 Term Loan was drawn down for an original principal amount of NGN 124.5 billion (approximately $136.6 million), and funds borrowed under the loan were applied towards, inter alia, refinancing certain indebtedness of INT Towers, IHS Nigeria, and general corporate and working capital purposes.
As of January 3, 2023, the total commitments available under the Nigeria 2023 Term Loan were NGN 124.5 billion (approximately $136.6 million), which were increased in February 2023, by NGN 29.0 billion (approximately $31.8 million) and further increased in May 2023, by NGN 11.5 billion (approximately $12.6 million) pursuant to the facility increase clause contained within the loan agreement up to its total NGN 165.0 billion (approximately $181.0 million) capacity.
F-63
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
In January 2023, NGN 124.5 billion (approximately $136.6 million) was drawn down under the Nigeria 2023 Term Loan. Further drawdowns took place in March 2023, April 2023 and June 2023 for NGN 14.0 billion (approximately $15.4 million), NGN 15.0 billion (approximately $16.5 million) and NGN 11.5 billion (approximately $12.6 million) respectively.
As of December 31, 2023, NGN 165.0 billion (approximately $181.0 million) had been drawn down under this facility.
Nigeria (2023) Revolving Credit Facility
IHS Netherlands Holdco B.V., IHS Nigeria, IHS Towers NG Limited, INT Towers and IHS Holding Limited entered into an up to NGN 55.0 billion (approximately $60.3 million) revolving credit facility agreement in January 2023 (as amended and/or restated from time to time the “Nigeria 2023 RCF”), and between, amongst others, IHS Netherlands Holdco B.V. as holdco and guarantor; IHS Towers NG Limited and INT Towers as borrowers and guarantors; each of IHS Holding Limited, IHS Netherlands NG1 B.V., IHS Netherlands NG2 B.V., and Nigeria Tower Interco B.V. as guarantors; Ecobank Nigeria Limited as agent and certain financial institutions listed therein as original lenders.
The interest rate per annum is equal to 20% in the first year moving to a floating rate for the remainder of the term. This floating rate is defined by the Nigerian MPR plus a margin of 2.5% and is subject to a cap of 24% and floor of 18%. IHS Netherlands Holdco B.V. also pays certain other fees and costs, including agent fees.
As of January 3, 2023, the total commitments available under the Nigeria 2023 RCF were NGN 44.0 billion (approximately $48.3 million), which were further increased in February 2023, by NGN 11.0 billion (approximately $12.1 million) to NGN 55.0 billion (approximately $60.3 million), pursuant to the facility increase clause contained within the loan agreement.
As of December 31, 2023, there are no amounts drawn and outstanding under the Nigeria (2023) Revolving Credit Facility.
Repayment of the IHS (Nigeria) Local Facilities
On January 11, 2023, the following IHS (Nigeria) Limited local facilities were fully repaid:
| (i) | IHSN NG1 Facility (a NGN 16.1 billion (approximately $17.7 million) facility entered into in March 2022 and guaranteed by each of IHS Holding Limited, INT Towers Limited and IHS Towers NG Limited). |
| (ii) | IHSN NG2 Facility (a NGN 10.0 billion (approximately $11.0 million) facility entered into in May 2022 and guaranteed by each of IHS Holding Limited, INT Towers Limited and IHS Towers NG Limited). |
Repayment of the Nigeria (2019) term loan
IHS Netherlands Holdco B.V., IHS Nigeria, IHS Towers NG Limited, INT Towers and IHS Holding Limited entered into a term loan agreement, originally dated September 3, 2019 (and as amended and/or restated from time to time, including pursuant to an amendment and restatement agreement dated September 29, 2021) (the “Nigeria 2019 Facility”). In January 2023, the full remaining principal amount of the Naira tranche of the Nigeria 2019 Facility of NGN 88.3 billion (approximately $96.9 million) (plus accrued interest) was prepaid.
I-Systems Facility drawdown
I-Systems Soluções de Infraestrutura S.A. (formerly known as Fiberco Soluções de Infraestrutura S.A.) (“I-Systems”) entered into a BRL 200.0 million (approximately $41.2 million) credit agreement, originally dated October 3, 2022 (as amended and/or restated from time to time, the “I-Systems Facility”). On October 13, 2022, Itau Unibanco S.A. provided an additional commitment in an aggregate amount of BRL 200.0 million (approximately $41.2 million) on the same terms, available in two tranches.
On February 3, 2023, I-Systems drew down a tranche of BRL 80.0 million (approximately $16.5 million) pursuant to the I-Systems Facility. The interest rate applicable on this tranche is CDI plus 2.45% (assuming a 252-day calculation basis). On March 31, 2023, I-Systems drew down a tranche of BRL 120.0 million (approximately $24.7 million) pursuant to the I-Systems Facility. The interest rate applicable on this tranche is CDI plus 2.50% (assuming a 252-day calculation basis). As IHS Brasil Participacoes Ltda entered into (and later assigned to IHS Brasil - Cessão de Infraestruturas S.A.) the following facilities: (a) a BRL 300.0 million (approximately $61.8 million) credit agreement originally in May 2021 (as amended and/or restated from time to time, the “IHS Brasil Facility 1”), and (b) a BRL 100.0 million (approximately $20.6 million) credit agreement originally in June 2021 (as amended and/or restated from time to time, the “IHS Brasil Facility 2” and, together with the IHS Brasil Facility 1, the “IHS Brasil Facilities”).
F-64
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
of December 31, 2023, BRL 400 million (approximately $82.4 million) had been drawn down under this facility.
Repayment of the IHS Brasil - Cessão de Infraestruturas S.A. Facilities
IHS Brasil - Cessão de Infraestruturas S.A. also entered into a BRL 495.0 million (approximately $102.0 million) credit agreement originally in April 2022 (as amended and/or restated from time to time, the “GTS Facility”).
In September 2023, we prepaid the full remaining principal amount of the IHS Brasil Facilities and the GTS Facility of BRL 713.6 million (approximately $147.1 million) (plus accrued interest) using the proceeds received following the issuance of the IHS Brasil Debentures.
IHS Brasil - Cessão de Infraestruturas S.A. Debentures
IHS Brasil - Cessão de Infraestruturas S.A. issued debentures for BRL 1,200.0 million (approximately $247.3 million), in September 2023 (as amended and/or restated from time to time, the “IHS Brasil Debentures”). The IHS Brasil Debentures amortize, starting from February 2026, semi-annually until maturity in August 2031.
The IHS Brasil Debentures contain customary information and financial covenants, including but not limited to the maintenance of specified net debt to EBITDA and interest cover ratios. They also contain customary negative covenants and restrictions including, but not limited to, dividends and other payments to shareholders, intercompany loans and capital reductions.
The IHS Brasil Debentures are secured by a pledge over all shares owned by IHS Netherlands BR B.V. in IHS Brasil – Cessão de Infraestruturas S.A. and a pledge over the bank account where the companies’ receivables are deposited.
The IHS Brasil Debentures have an interest rate of CDI plus 3.10% (assuming a 252-day calculation basis) and will terminate in August 2031.
The proceeds from the issuance were used to refinance certain indebtedness of IHS Brasil - Cessão de Infraestruturas S.A. (including the IHS Brasil Facilities and the GTS Facility) and for general corporate and working capital purposes.
IHS Kuwait Facility drawdown
IHS Kuwait Limited entered into a loan agreement originally dated April 19, 2020 (as amended and/or restated from time to time) with a total commitment of KWD 26.0 million (approximately $84.6 million) (the “Kuwait Facility”).
The Kuwait Facility will terminate in April 2029, and as of December 31, 2023, KWD 21.8 million (approximately $70.9 million) of this facility was drawn down.
IHS South Africa Facility
IHS Towers South Africa Proprietary Limited (“IHS SA”) entered into a loan agreement originally in May 2022 (as amended and/or restated from time to time) with a total commitment of ZAR 3,470.0 million (approximately $189.0 million) (the “IHS SA Facility”). In May 2023, IHS SA drew down ZAR 70.0 million (approximately $3.8 million) under the facility. As of December 31, 2023, ZAR 3,470 million (approximately $189.0 million) had been drawn down under this facility.
F-65
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
IHS South Africa Overdraft
IHS SA entered into a ZAR 350.0 million (approximately $19.1 million) overdraft facility agreement in October 2023 (the “IHS SA Overdraft”). The IHS SA Overdraft is governed by South African law and funds borrowed under the facility will be applied towards general corporate purposes. The IHS SA Overdraft will terminate in October 2024.
As of December 31, 2023, ZAR 11.3 million (approximately $0.6 million) has been drawn down under this facility.
CIV (2023) Term Loan
IHS Côte d’Ivoire S.A. entered into a facility agreement originally in December 2023 (as amended and/or restated from time to time) with, amongst others, certain financial institutions listed therein as original lenders, split into one tranche with a total commitment of €88.0 million (approximately $97.1 million) (the “CIV 2023 Euro Tranche”), and another tranche with a total commitment of XOF 11.2 billion (approximately $18.8 million) (the “CIV 2023 XOF Tranche” and, together with the CIV 2023 Euro Tranche, the “CIV 2023 Term Loan”). The CIV 2023 Term Loan is governed by French law. Funds under the facility are to be applied towards, inter alia, refinancing certain indebtedness of IHS Côte d’Ivoire S.A. (including the IHS Côte d’Ivoire S.A. Facility), general corporate and working capital purposes, and funding a settlement of intercompany loans.
The CIV Term Loan will terminate in December 2028. As of December 31, 2023, there are no amounts drawn under this facility.
ii.Letters of credit
As of December 31, 2023, IHS (Nigeria) Limited has utilized $98.9 million through funding under agreed letters of credit. These letters mature on March 31, 2024 and their interest rates range from 12.00% to 15.55%. These letters of credit are utilized to fund capital and operational expenditure with suppliers.
As of December 31, 2023, INT Towers Limited has utilized $219.4 million through funding under agreed letters of credit. These letters mature on March 31, 2024 and their interest rates range from 12.00% to 15.75%. These letters of credit are utilized to fund capital and operational expenditure with suppliers.
As of December 31, 2023, IHS Towers NG Limited has utilized $0.02 million through funding under agreed letters of credit. These letters mature on March 31, 2024 and incur interest at a rate of 15.49%. These letters of credit are utilized to fund capital and operational expenditure with suppliers.
As of December 31, 2023, Global Independent Connect Limited has utilized $1.1 million through funding under agreed letters of credit. These letters mature on March 31, 2024 and their interest rates range from 13.25% to 15.49%. These letters of credit are utilized to fund capital and operational expenditure with suppliers.
23.Lease liabilities
|
|
2023 |
|
2022 |
* |
|
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
Current |
|
91,156 |
|
87,240 |
|
Non-current |
|
510,838 |
|
518,318 |
|
Total lease liabilities |
|
601,994 |
|
605,558 |
|
Lease liabilities represent the net present value of future payments due under long term land leases for leasehold land on which our towers are located and for other leasehold assets such as warehouses and offices. During the period, payments to the value of $131.3 million (2022: $112.8 million, 2021: $96.2 million) were made in respect of recognized lease liabilities. These lease liabilities are unwound using incremental borrowing rates which represent the credit risk of the lessee entity and the length of the lease agreement.
F-66
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Reconciliation of cash and non-cash changes
|
|
2023 |
|
2022 |
* |
2021 |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
At January 1 |
|
605,558 |
|
376,101 |
|
314,747 |
Additions through business combinations (note 31) |
|
— |
|
216,218 |
|
44,557 |
Additions through new leases or remeasurements |
|
159,624 |
|
118,609 |
|
131,438 |
Interest and finance charges for lease liabilities (note 11) |
|
61,617 |
|
52,234 |
|
32,826 |
Payments for the principal of lease liabilities |
|
(72,854) |
|
(76,629) |
|
(63,324) |
Interest paid for lease liabilities |
|
(58,443) |
|
(36,178) |
|
(32,923) |
Remeasurements or terminations** |
|
(67,547) |
|
(37,718) |
|
(30,978) |
Effects of movement in exchange rates |
|
(25,961) |
|
(7,079) |
|
(20,242) |
Closing balance – December 31 |
|
601,994 |
|
605,558 |
|
376,101 |
Amount recognized in the statement of income
|
|
2023 |
|
2022 |
* |
2021 |
|
|
$'000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
Interest on lease liabilities (note 11) |
|
61,617 |
|
52,234 |
|
32,826 |
Expenses relating to short-term leases and low value assets (note 7) |
|
10,879 |
|
16,924 |
|
11,165 |
Depreciation for right of use assets (note 14) |
|
95,895 |
|
88,615 |
|
60,685 |
Total for the year ended |
|
168,391 |
|
157,773 |
|
104,676 |
As at December 31 the contractual maturities of the lease liabilities were as follows:
|
|
|
|
Total |
|
|
|
|
|
|
|
|
|
|
Carrying |
|
contractual |
|
Within |
|
2 - 3 |
|
4 – 5 |
|
Over 5 |
|
|
value |
|
cash flows |
|
1 year |
|
years |
|
years |
|
years |
|
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
2023 |
|
|
|
|
|
|
|
|
|
|
|
|
Lease liabilities |
|
601,994 |
|
1,181,459 |
|
101,709 |
|
193,434 |
|
180,895 |
|
705,421 |
|
|
|
|
|
|
|
|
|
|
|
|
|
2022 |
|
|
|
|
|
|
|
|
|
|
|
|
Lease liabilities* |
|
605,558 |
|
1,108,532 |
|
92,417 |
|
179,930 |
|
168,231 |
|
667,954 |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
**This value represents disposals due to terminated leases and the impact of remeasurement of lease liabilities as a result of changes in lease terms.
Lease obligation contractual cash flows are disclosed with the same renewal expectation assumption assessed for lease accounting under IFRS 16. The average remaining lease term remaining at December 31, 2023 is 12.5 years.
F-67
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
24.Provisions for other liabilities and charges
Decommissioning and site restoration provision
|
|
2023 |
|
2022 |
|
2021 |
|
|
$'000 |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
At January 1 |
|
85,016 |
|
71,941 |
|
53,266 |
Additions through business combinations (refer to note 31) |
|
— |
|
34,419 |
|
8,347 |
Net provision increases and remeasurements |
|
(505) |
|
(24,898) |
|
7,212 |
Payments for tower and tower equipment decommissioning |
|
(343) |
|
(343) |
|
(231) |
Reversal of decommissioning through profit and loss |
|
— |
|
— |
|
(2,671) |
Unwinding of discount |
|
9,156 |
|
7,084 |
|
4,644 |
Effects of movement in exchange rates |
|
(6,916) |
|
(3,187) |
|
1,374 |
At December 31 |
|
86,408 |
|
85,016 |
|
71,941 |
|
|
|
|
|
|
|
Analysis of total decommissioning and site restoration provisions: |
|
|
|
|
|
|
Non-current |
|
86,131 |
|
84,533 |
|
71,598 |
Current |
|
277 |
|
483 |
|
343 |
|
|
86,408 |
|
85,016 |
|
71,941 |
This provision relates to the probable obligation that the Group may incur to dismantle and remove assets from tower sites. The amount recognized initially is the present value of the estimated amount that will be required to decommission and restore the leased sites to their original states, discounted using rates applicable to each of the individual operations within the Group. The amount provided for each site has been discounted based on the respective lease terms attached to each site.
The provisions have been created based on management’s decommissioning experience of the specific situations. Assumptions have been made based on the current economic environment, current construction requirements, technology, price levels and expected plans for remediation. Management believes that these assumptions are a reasonable basis upon which to estimate the future liability. These estimates are reviewed regularly to take into account any material changes to the assumptions. These remeasurements result in adjustments to the value of the related assets within property plant and equipment. Actual decommissioning or restoration costs will however, ultimately depend upon future market prices for the necessary decommissioning works required that will reflect market conditions at the relevant time. Furthermore, the timing of decommissioning is likely to depend on when the lease term is terminated without renewal. This, in turn, will depend upon technological changes in the local and international telecommunication industries which are inherently uncertain.
The discount rates applied have been in line with the weighted average borrowing rate for the respective operating entities in the periods the assets were constructed/acquired. Below is the discount rate applied by each operating entity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IHS |
|
IHS Côte |
|
IHS |
|
IHS |
|
IHS |
|
|
|
|
|
|
Nigerian |
|
Cameroon |
|
d’Ivoire |
|
Zambia |
|
South Africa |
|
Rwanda |
|
Brazilian |
|
IHS Kuwait |
Discount |
|
entities |
|
S.A. |
|
S.A. |
|
Limited |
|
Proprietary Limited |
|
Limited |
|
entities |
|
Limited |
rates |
|
% |
|
% |
|
% |
|
% |
|
% |
|
% |
|
% |
|
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2023 |
|
11.1 |
|
7.4 |
|
5.9 |
|
14.0 |
|
12.2 |
|
13.5 |
|
15.1 |
|
6.3 |
2022 |
|
11.1 |
|
5.5 |
|
8.0 |
|
9.1 |
|
11.1 |
|
16.0 |
|
16.4 |
|
3.4 |
F-68
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Based on the simulation performed, the impact on accumulated losses of a 1% (2022: 1%) shift in discount rate is given below:
|
|
Increase/ (decrease) |
||||
|
|
on accumulated losses |
||||
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
Effect of 1% increase in discount rate |
|
(2,562) |
|
(2,066) |
|
(1,571) |
Effect of 1% decrease in discount rate |
|
1,189 |
|
1,606 |
|
1,093 |
25.Stated capital
|
|
Class A shares pre-IPO / Ordinary Shares post-IPO |
|
Class B shares pre-IPO |
||||||||
|
|
|
|
|
|
Stated |
|
|
|
|
|
Stated |
|
|
|
|
|
|
capital net |
|
|
|
|
|
capital net |
|
|
Number of |
|
Stated |
|
of issue |
|
Number of |
|
Stated |
|
of issue |
|
|
shares |
|
capital |
|
costs |
|
shares |
|
capital |
|
costs |
|
|
000’s |
|
$'000 |
|
$'000 |
|
000’s |
|
$'000 |
|
$'000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2021 |
|
130,492,567 |
|
4,233,335 |
|
4,231,856 |
|
16,558,927 |
|
299,405 |
|
299,014 |
Reclassification of Class A and Class B shares to ordinary shares |
|
16,558,927 |
|
299,405 |
|
299,014 |
|
(16,558,927) |
|
(299,405) |
|
(299,014) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Impact of reverse share split |
|
(146,757,391) |
|
— |
|
— |
|
— |
|
— |
|
— |
Shares issued on IPO |
|
18,000 |
|
378,000 |
|
378,000 |
|
— |
|
— |
|
— |
Share issue costs |
|
— |
|
— |
|
(28,154) |
|
— |
|
— |
|
— |
Shares issued on exercise of options |
|
15,717 |
|
342,768 |
|
342,768 |
|
— |
|
— |
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2021 |
|
327,820 |
|
5,253,508 |
|
5,223,484 |
|
— |
|
— |
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares issued on exercise of options |
|
4,100 |
|
88,469 |
|
88,469 |
|
— |
|
— |
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2022 |
|
331,920 |
|
5,341,977 |
|
5,311,953 |
|
— |
|
— |
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares issued on exercise of options |
|
2,478 |
|
92,896 |
|
92,896 |
|
— |
|
— |
|
— |
Shares repurchased and canceled through buyback program |
|
(1,879) |
|
(10,037) |
|
(10,037) |
|
— |
|
— |
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2023 |
|
332,519 |
|
5,424,836 |
|
5,394,812 |
* |
— |
|
— |
|
— |
*As at December 31, 2023 stated capital was made up of share capital of $99,755,745 and share premium of $5,295,055,920.
On October 14, 2021 the Company announced the pricing of its initial public offering (“IPO”) of 18,000,000 ordinary shares at a public offering price of $21 per share on the New York Stock Exchange (NYSE). All of the outstanding Class A and Class B shares of the Company were exchanged on a 500 to 1 basis for ordinary shares and the outstanding options granted pursuant to the Company’s existing Long Term Incentive Plan was converted into ordinary shares (other than 7,940,413 ordinary shares issuable upon the exercise of share options outstanding as of September 30, 2021 pursuant to the Long-Term Incentive Plan).
In August 2023, the Company’s board of directors (the “Board”) authorized a stock repurchase program for up to $50.0 million of the Company’s ordinary shares, effective as of August 15, 2023 through August 15, 2025, subject to market conditions, contractual restrictions, regulatory requirements and other factors. During the third quarter of 2023, the Company repurchased 948,101 shares, at an average price of $5.04 per share, for $4.8 million under its stock repurchase program. During the fourth quarter of 2023, the Company repurchased a further 930,556 shares, at an average price of $5.61 per share, for $5.2 million. All shares repurchased were canceled.
F-69
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Summarized below are the terms of the shares for the year end December 31, 2023 and 2022:
| ● | There is only one class of ordinary shares. |
| ● | Ordinary shares have a par value of $0.30 each. |
| ● | The holders of our ordinary shares are entitled to such dividends as may be declared by our board of directors subject to the Companies Act and our Articles. Dividends and other distributions on issued and outstanding ordinary shares may be paid out of the funds of the Company lawfully available for such purpose, subject to any preference of any outstanding preferred shares. Dividends and other distributions will be distributed among the holders of our ordinary shares on a pro rata basis. |
| ● | Voting at any shareholders’ meeting is by way of poll. On a poll every shareholder present in person or by proxy shall have one vote for each ordinary share on all matters upon which the ordinary shares are entitled to vote except that, for so long as the number of ordinary shares held by Mobile Telephone Networks (Netherlands) B.V. or an affiliate of it or MTN Group is greater than twenty percent (20%) of the total number of ordinary shares in issue, each ordinary share held by MTN Group shall entitle MTN Group to the number of votes per ordinary share calculated by dividing 20% of the total number of ordinary shares in issue by the number of Shares held by MTN Group. |
| ● | Any of our shareholders may transfer all or any of his or her ordinary shares by an instrument of transfer in the usual or common form or any other form approved by our board of directors, subject to the applicable restrictions of our Articles, such as the suspension of transfers for a period immediately preceding a general meeting, or the determination that a proposed transfer is not eligible, as well as restrictions in our Shareholders’ Agreement and our Registration Rights Agreement. |
| ● | On a return of capital on winding up or otherwise (other than on conversion, redemption or purchase of ordinary shares), assets available for distribution among the holders of ordinary shares shall be distributed among the holders of the ordinary shares on a pro rata basis. |
The authorized share capital of the Company is 1,700,000,000 shares with par value of $0.30 each. All ordinary shares issued were fully paid up and non-assessable as at December 31, 2023 and 2022.
F-70
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
26.Other reserves
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair value |
|
|
|
|
|
|
|
|
|
|
|
|
through |
|
|
|
|
|
|
|
|
|
|
|
|
other |
|
|
|
|
|
|
|
|
|
|
|
|
compre- |
|
|
|
|
|
|
|
Foreign |
|
|
|
|
hensive |
|
Restruct- |
|
Share- based |
|
Loss on |
|
exchange |
|
|
|
|
income |
|
uring |
|
payment |
|
transactions |
|
translation |
|
|
|
|
reserve |
|
reserve |
|
reserve |
|
between owners |
|
reserve |
|
Total |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2021 |
|
(6) |
|
4,019 |
|
511,547 |
|
(840,359) |
|
(160,706) |
|
(485,505) |
Other comprehensive income |
|
3 |
|
— |
|
— |
|
— |
|
(22,560) |
|
(22,557) |
Recognition of share-based payment expense |
|
— |
|
— |
|
13,003 |
|
— |
|
— |
|
13,003 |
SBP reserve converted to share capital |
|
— |
|
— |
|
(342,768) |
|
— |
|
— |
|
(342,768) |
Other reclassifications related to share-based payment |
|
— |
|
— |
|
(5,084) |
|
— |
|
— |
|
(5,084) |
At December 31, 2021 |
|
(3) |
|
4,019 |
|
176,698 |
|
(840,359) |
|
(183,266) |
|
(842,911) |
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2022 |
|
(3) |
|
4,019 |
|
176,698 |
|
(840,359) |
|
(183,266) |
|
(842,911) |
Other comprehensive income* |
|
— |
|
— |
|
— |
|
— |
|
59,521 |
|
59,521 |
Recognition of share-based payment expense |
|
— |
|
— |
|
13,423 |
|
— |
|
— |
|
13,423 |
SBP reserve converted to share capital |
|
— |
|
— |
|
(88,469) |
|
— |
|
— |
|
(88,469) |
Other reclassifications related to share-based payment |
|
— |
|
— |
|
(2,835) |
|
— |
|
— |
|
(2,835) |
At December 31, 2022 |
|
(3) |
|
4,019 |
|
98,817 |
|
(840,359) |
|
(123,745) |
|
(861,271) |
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2023 |
|
(3) |
|
4,019 |
|
98,817 |
|
(840,359) |
|
(123,745) |
|
(861,271) |
Other comprehensive income |
|
12 |
|
— |
|
— |
|
— |
|
950,843 |
|
950,855 |
Recognition of share-based payment expense |
|
— |
|
— |
|
13,168 |
|
— |
|
— |
|
13,168 |
SBP reserve converted to share capital |
|
— |
|
— |
|
(92,896) |
|
— |
|
— |
|
(92,896) |
Other reclassifications related to share-based payment |
|
— |
|
— |
|
(1,426) |
|
— |
|
— |
|
(1,426) |
At December 31, 2023 |
|
9 |
|
4,019 |
|
17,663 |
|
(840,359) |
|
827,098 |
|
8,430 |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
Fair value through other comprehensive income reserve
This reserve holds accumulated gains and losses on fair value movements of fair value through other comprehensive income financial assets. This is a non-distributable reserve.
Restructuring reserve
This reserve is the excess of consideration over net assets acquired in business combinations under common control arising from Group restructuring. This is a non-distributable reserve.
Share-based payment reserve
This reserve represents the cumulative amounts charged in respect of unsettled options issued to employees of the Group. This is a non-distributable reserve.
Loss on transactions between owners
This reserve is the accumulated loss arising from transactions between parent and non-controlling interest shareholders.
F-71
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Foreign exchange translation reserve
This reserve is the accumulated exchange gains and losses arising from the translation of foreign operations from those operations’ functional currencies to the Group’s reporting currency. It is a non-distributable reserve.
27.Non-controlling interest
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
Balance at January 1 |
|
227,200 |
|
223,188 |
|
14,216 |
Non-controlling interest arising on business combinations (refer to note 31)* |
|
1,922 |
|
831 |
|
215,014 |
Loss for the period |
|
(11,569) |
|
(9,959) |
|
(289) |
Other comprehensive gain/(loss) |
|
19,953 |
|
13,140 |
|
(5,753) |
Balance at December 31 |
|
237,506 |
|
227,200 |
|
223,188 |
*Includes non-controlling interest arising on subsequent asset acquisitions on business combination transactions.
In November 2021, the Group completed a deal with TIM S.A. to acquire a controlling interest in I-Systems Soluções de Infraestrutura S.A. (“I-Systems”) incorporated and with its principal place of business in Brazil. The Group owns a 51% (same proportion voting rights) stake in I-Systems and TIM the remaining 49%.
Set out below is summarized financial information for the I-Systems subsidiary, being the only subsidiary that has non-controlling interest that is material to the group. The amounts disclosed are before inter-company eliminations.
Summarized balance sheet and cash flows |
I-Systems Soluções de Infraestrutura S.A. |
||
|
2023 ($’000) |
|
2022 ($’000) |
|
|
|
|
Current assets |
83,274 |
|
102,445 |
Current liabilities |
(53,797) |
|
(38,834) |
Current net assets |
29,477 |
|
63,611 |
|
|
|
|
Non-current assets |
527,592 |
|
462,122 |
Non-current liabilities |
(114,681) |
|
(92,453) |
Non-current net assets |
412,911 |
|
369,669 |
|
|
|
|
Net assets |
442,388 |
|
433,280 |
|
|
|
|
Accumulated non-controlling interest at the end of the period |
216,770 |
|
212,307 |
|
|
|
|
Summarized statement of comprehensive income for the reporting period |
I-Systems Soluções de Infraestrutura S.A. |
||
|
2023 ($’000) |
|
2022 ($’000) |
|
|
|
|
Revenue |
73,556 |
|
56,602 |
Loss for the period |
(22,712) |
|
(15,377) |
Other comprehensive income |
31,819 |
|
29,449 |
Total comprehensive income |
9,107 |
|
14,072 |
|
|
|
|
Loss allocated to non-controlling interest during the period |
(11,129) |
|
(7,535) |
|
|
|
|
|
I-Systems Soluções de Infraestrutura S.A. |
||
|
2023 ($’000) |
|
2022 ($’000) |
|
|
|
|
Cash flows generated from operating activities |
59,827 |
|
55,714 |
Cash flows used in investing activities |
(100,771) |
|
(91,680) |
Cash flows generated from financing activities |
24,483 |
|
36,574 |
Net (decrease)/increase in cash and cash equivalents |
(16,461) |
|
608 |
F-72
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
28.Share-based payment obligations
Legacy employee share-based payment scheme
The terms of the IHS share-based payment plans for employees were amended on July 10, 2019 such that the exercise prices of the share option were removed and the number of shares options an option holder will receive was reduced on a pro-rata basis (taking into account their relative values). The amended terms are:
| ● | No exercise price. |
| ● | On a liquidity event (sale or IPO), the options will be converted and replaced with a fixed pool of shares. |
| ● | In the event of a Sale option holders will receive the entirety of their options in shares. |
| ● | In the event of an IPO: |
| ● | Option holders will be awarded two thirds (66.7%) of their options as shares. |
| ● | Option holders will further be entitled to receive up to an additional 33.3% of their shares subject to achieving the performance conditions below: |
| - | 50% issued annually if the Group achieves 5% Adjusted EBITDA growth and Adjusted funds from operations (“AFFO”) growth compared to the prior 12 month period where AFFO is defined as the profit/(loss) for the period, before income tax expense/(benefit), finance costs and income, depreciation and amortization, impairment of property, plant and equipment, intangible assets excluding goodwill and prepaid land rent on the decommissioning of sites, net (profit)/loss on sale of assets, share-based payment (credit)/expense, insurance claims, exceptional items income, exceptional items expense and other non-operating income and expenses, amortization of prepaid site rent, adjusted to take into account interest paid, interest income received, revenue withholding tax, income taxes paid, lease payments made, amortization of prepaid site rent, maintenance capital expenditures and corporate capital expenditures |
| - | 50% issued annually on a sliding scale basis for Adjusted EBITDA growth and AFFO growth between 5 and 10% compared to the prior 12 month period. |
No share options expired during the year.
On October 14, 2021 the Company announced the pricing of its initial public offering on the New York Stock Exchange (NYSE). In accordance with the terms above option holders were awarded two thirds (66.7%) of their options as shares. 50% of the remaining third (33.3%) were awarded in the year ended December 2022 as the performance conditions stated above had been met. The other 50% of the remaining third were awarded in the year ended December 2023 as the performance conditions stated above were met.
F-73
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
Omnibus employee share-based payment scheme
Between February 4, 2022 and February 7, 2022, a total of 1,147,500 options, of which 100,211 options have been forfeited due to employee leavers, were issued as part of the new Omnibus employee share-based payment plan. The plan will be deemed equity settled and comprise of:
| ◾ | Restricted stock units (“RSU”), which do not include performance conditions and vest in three equal portions on October 15, 2022, 2023 and 2024. |
| ◾ | Performance stock units (“PSU”), with a Recurring Levered Free Cash Flow target and a cumulative total shareholder return target. Recurring Levered Free Cash flow target is a non-market-based performance condition, assessed annually over a three-year period. A cumulative total shareholder return target is market-based, was valued based on a Monte Carlo model for a three-year performance period, an approach that is commonly used for IFRS 2 valuations. The PSUs include a vesting period which is 3 years up to October 15, 2024. |
On June 9, 2022, a total of 1,700,446 options, of which 68,941 options have been forfeited due to employee leavers, were issued as part of the existing Omnibus employee share-based payment plan. The plan will be deemed equity settled and comprise of:
| ◾ | Restricted stock units (“RSU”), which do not include performance conditions and vest in three equal portions on March 31, 2023, 2024 and 2025. |
| ◾ | Performance stock units (“PSU”), with a Recurring Levered Free Cash Flow target and a cumulative total shareholder return target. Recurring Levered Free Cash flow target is a non-market-based performance condition, assessed annually over a three-year period. A cumulative total shareholder return target is market-based, was valued based on a Monte Carlo model for a three-year performance period, an approach that is commonly used for IFRS 2 valuations. The PSUs include a vesting period which is 3 years up to March 31, 2025. |
On October 14, 2022, a total of 94,876 options were issued as part of the existing Omnibus employee share-based payment plan. The plan will be deemed equity settled and comprise of:
| ◾ | Restricted stock units (“RSU”), which do not include performance conditions and vest in three equal portions on June 1, 2023, 2024 and 2025. |
On May 25, 2023, a total of 2,132,134 options, of which 44,126 options have been forfeited due to employee leavers, were issued as part of the existing Omnibus employee share-based payment plan. The plan will be deemed equity settled and comprise of:
| ◾ | Restricted stock units (“RSU”), which do not include performance conditions and vest in three equal portions on April 6, 2024, 2025 and 2026. |
| ◾ | Performance stock units (“PSU”), with a Recurring Levered Free Cash Flow target and a cumulative total shareholder return target. Recurring Levered Free Cash flow target is a non-market-based performance condition, assessed annually over a three-year period. A cumulative total shareholder return target is market-based, was valued based on a Monte Carlo model for a three-year performance period, an approach that is commonly used for IFRS 2 valuations. The PSUs include a vesting period which is 3 years up to April 6, 2026. |
The total charge to the profit or loss in the year is analyzed as follows:
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
Expense under equity settled classification from date of amendment |
|
13,370 |
|
13,265 |
|
11,780 |
|
|
13,370 |
|
13,265 |
|
11,780 |
F-74
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
| (i) | Movements in the number of share options outstanding |
|
|
2023 |
||||||||
|
|
Incentive |
|
Incentive |
|
Incentive |
|
Incentive |
|
Omnibus |
|
|
plan 1 |
|
plan 2 |
|
plan 2B |
|
plan 3 |
|
plan |
|
|
000’s |
|
000’s |
|
000’s |
|
000’s |
|
000’s |
|
|
|
|
|
|
|
|
|
|
|
Authorized |
|
634 |
|
2,560 |
|
768 |
|
10 |
|
4,750 |
|
|
|
|
|
|
|
|
|
|
|
Issued |
|
|
|
|
|
|
|
|
|
|
At January 1 |
|
634 |
|
2,560 |
|
768 |
|
10 |
|
2,618 |
Issued |
|
— |
|
— |
|
— |
|
— |
|
2,132 |
Forfeited |
|
(317) |
|
(1,280) |
|
(384) |
|
(5) |
|
(127) |
Exercised during the period |
|
(317) |
|
(1,280) |
|
(384) |
|
(5) |
|
(493) |
At December 31 |
|
— |
|
— |
|
— |
|
— |
|
4,130 |
|
|
2022 |
||||||||
|
|
Incentive |
|
Incentive |
|
Incentive |
|
Incentive |
|
Omnibus |
|
|
plan 1 |
|
plan 2 |
|
plan 2B |
|
plan 3 |
|
plan |
|
|
000’s |
|
000’s |
|
000’s |
|
000’s |
|
000’s |
|
|
|
|
|
|
|
|
|
|
|
Authorized |
|
1,267 |
|
5,120 |
|
1,537 |
|
19 |
|
2,943 |
|
|
|
|
|
|
|
|
|
|
|
Issued |
|
|
|
|
|
|
|
|
|
|
At January 1 |
|
1,267 |
|
5,120 |
|
1,537 |
|
19 |
|
— |
Issued |
|
— |
|
— |
|
— |
|
— |
|
2,943 |
Forfeited |
|
— |
|
— |
|
— |
|
— |
|
(86) |
Exercised during the period |
|
(633) |
|
(2,560) |
|
(769) |
|
(9) |
|
(239) |
At December 31 |
|
634 |
|
2,560 |
|
768 |
|
10 |
|
2,618 |
(ii)The valuation assumptions used to carry out the valuation of the scheme
The share option plans have been valued using a Black Scholes model, an approach that is commonly used for similar IFRS 2 valuations.
Valuation assumptions – legacy employee share-based payment scheme
At the modification date of July 10, 2019 since the exercise price term was amended to $Nil and dividends were not expected to be paid in the near future, the options were deep in the money and the Black Scholes model returns the value of the share price for the value of the option. The share price assumption used was $22.04. A forfeiture rate of 10% and 5% was assumed for the LTIP1 and LTIP2 plans respectively and 0% for LTIP2B and LTIP3. No dividend was taken into account in performing the valuation since IHS Holding Limited has never paid dividends and there is very minimal likelihood that dividends will be paid in the near future.
On March 9, 2020, 120,228 options were issued. They were valued at $2.2 million at issue using a share price assumption of $21.20. Forfeiture rates of 0%, 5% and 10% were assumed for the Group’s various long term incentive plans. No dividend was taken into account in performing the valuation since IHS Holding Limited has never paid dividends and there is very minimal likelihood that dividends will be paid in the near future.
On July 14, 2020, 33,405 options were issued. They were valued at $0.7 million at issue using a share price assumption of $22.14. Forfeiture rates of 0%, 5% and 10% were assumed for the Group’s various long term incentive plans. No dividend was taken into account in performing the valuation since IHS Holding Limited has never paid dividends and there is very minimal likelihood that dividends will be paid in the near future.
F-75
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
On July 1, 2021 159,369 options were issued. They were valued at $3.7 million at issue using a share price assumption of $23.19. Forfeiture rates of 0% were assumed for the Group’s various long term incentive plans. No dividend was taken into account in performing the valuation since IHS Holding Limited has never paid dividends and there is very minimal likelihood that dividends will be paid in the near future.
The above information has been adjusted for the reverse share split that took place in October 2021.
Valuation assumptions – Omnibus employee share-based payment scheme
The Omnibus options issued were valued at $49.9 million at issue using a share price assumption within a range of $7.94 - $11.55 depending on the grant date. The fair value of the RSUs and PSUs with non-market conditions determined using share price at grant date amounted to $22.7 million and $19.1 million respectively while the fair value of the PSUs with market conditions determined using the Monte Carlo model amounted to $8.2 million. At December 31, 2023 a forfeiture rate of 7% was assumed resulting in an expected charge over the remaining term of the options of $16.0 million. Volatility within a range of 35.9% and 50.91% was determined by calculating the observed historical volatilities over the end of the performance period of the grants. No dividend was taken into account in performing the valuation since IHS Holding Limited has never paid dividends and no dividends are planned to be paid in the near future.
(iv)Weighted-average remaining contractual life
Share options were originally granted at dates between June 2014 and September 2018 with a contractual life of 12 years.
The weighted-average remaining contractual life shown in the tables below is simply the period of time from the year end date to the expiry date of each of the options.
At December 31, following the amendment to terms on July 10, 2019, all share options had a nil exercise price.
|
|
2023 |
|
|
|
2022 |
|
|
|
|
Weighted |
|
Number of |
|
Weighted |
|
Number of |
|
|
average |
|
options in force |
|
average |
|
options in force |
Year of |
|
remaining |
|
at year end |
|
remaining |
|
at year end |
grant |
|
contractual life* |
|
|
|
contractual life* |
|
|
|
|
|
|
|
|
|
|
|
2014 |
|
— |
|
— |
|
0.33 |
|
519,763 |
2015 |
|
— |
|
— |
|
0.33 |
|
2,538,812 |
2017 |
|
— |
|
— |
|
0.33 |
|
842,658 |
2018 |
|
— |
|
— |
|
0.33 |
|
17,869 |
2020 |
|
— |
|
— |
|
0.33 |
|
25,605 |
2021 |
|
— |
|
— |
|
0.33 |
|
26,553 |
2022 |
|
1.02 |
|
2,041,836 |
|
1.72 |
|
2,617,876 |
2023 |
|
1.96 |
|
2,088,008 |
|
— |
|
— |
|
|
|
|
4,129,844 |
|
|
|
6,589,136 |
*The contractual remaining life has been determined using vesting dates as all options are expected to be exercised on vesting date.
F-76
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
29.Cash from operations
|
|
2023 |
|
2022 |
* |
2021 |
|
|
$’000 |
|
$'000 |
|
$'000 |
Reconciliation: |
|
|
|
|
|
|
Loss before income tax |
|
(1,880,650) |
|
(543,979) |
|
(8,141) |
Adjustments: |
|
|
|
|
|
|
Depreciation of property, plant and equipment (note 7 and 8) |
|
385,203 |
|
421,574 |
|
344,716 |
Amortization of intangible assets (note 15) |
|
50,383 |
|
47,330 |
|
38,166 |
Impairment of property, plant and equipment, intangible assets excluding goodwill and related prepaid land rent (note 7) |
|
87,696 |
|
38,157 |
|
51,113 |
Loss allowance/(reversal of loss allowance) on trade receivables (note 8.1) |
|
7,202 |
|
(4,446) |
|
(34,031) |
Impairment of withholding tax receivables (note 8) |
|
47,992 |
|
52,334 |
|
61,810 |
Impairment of goodwill (note 8) |
|
— |
|
121,596 |
|
— |
Amortization of prepaid site rent |
|
9,534 |
|
9,631 |
|
8,321 |
Net (gain)/loss on disposal of plant, property and equipment (note 8) |
|
(3,806) |
|
3,382 |
|
(2,499) |
Insurance claim income (note 9) |
|
(321) |
|
(2,092) |
|
(6,861) |
Finance costs (note 11) |
|
2,436,511 |
|
872,049 |
|
422,034 |
Finance income (note 10) |
|
(25,209) |
|
(15,825) |
|
(25,522) |
Share‑based payment expense (note 28) |
|
13,370 |
|
13,265 |
|
11,780 |
Impairment/(reversal of impairment) of inventory |
|
— |
|
138 |
|
(315) |
Reversal of decommissioning through profit and loss |
|
— |
|
— |
|
(2,671) |
Operating profit before working capital changes |
|
1,127,905 |
|
1,013,114 |
|
857,900 |
|
|
|
|
|
|
|
Changes in working capital |
|
|
|
|
|
|
Decrease/(increase) in inventory |
|
11,249 |
|
(37,750) |
|
6,689 |
Increase in trade and other receivables |
|
(295,260) |
|
(141,723) |
|
(164,382) |
Increase in trade and other payables |
|
59,029 |
|
133,233 |
|
87,866 |
Net movement in working capital |
|
(224,982) |
|
(46,240) |
|
(69,827) |
|
|
|
|
|
|
|
Cash from operations |
|
902,923 |
|
966,874 |
|
788,073 |
*Re-presented to reflect the remeasurement period adjustments, as required by IFRS 3, in respect of updates to the accounting for the MTN SA Acquisition in May 2022.
F-77
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
30Related parties
30.1Subsidiaries
IHS Holding Limited (‘the Parent’) is the ultimate parent of the following related parties at the year end:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ownership |
|
|
|
|
|
|
|
|
|
interests |
|
Ownership |
|
|
|
|
|
|
|
held |
|
interests held |
|
|
|
|
|
Country of |
|
by the Group |
|
by the Group |
|
Entity name |
|
Principal activity |
|
incorporation |
|
2023 |
|
2022 |
|
IHS Holding Limited (ultimate parent) |
|
Holding company |
|
Cayman Islands |
|
— |
|
— |
|
IHS Mauritius Cameroon Limited |
|
Holding company |
|
Mauritius |
|
100 |
% |
100 |
% |
IHS Mauritius Côte d’Ivoire Limited |
|
Holding company |
|
Mauritius |
|
100 |
% |
100 |
% |
IHS Mauritius Netherlands Limited |
|
Holding company |
|
Mauritius |
|
100 |
% |
100 |
% |
IHS Mauritius Zambia Limited |
|
Holding company |
|
Mauritius |
|
100 |
% |
100 |
% |
IHS Mauritius Rwanda Limited |
|
Holding company |
|
Mauritius |
|
100 |
% |
100 |
% |
IHS Africa (UK) Limited |
|
Provision of management services |
|
United Kingdom |
|
100 |
% |
100 |
% |
IHS Netherlands (Interco) Coöperatief U.A. |
|
Holding company |
|
Netherlands |
|
100 |
% |
100 |
% |
IHS Netherlands Holdco B.V. |
|
Provision of finance |
|
Netherlands |
|
100 |
% |
100 |
% |
IHS Netherlands NG1 B.V. |
|
Holding company |
|
Netherlands |
|
100 |
% |
100 |
% |
IHS Netherlands NG2 B.V. |
|
Holding company |
|
Netherlands |
|
100 |
% |
100 |
% |
IHS Nigeria Limited |
|
Operating* |
|
Nigeria |
|
100 |
% |
100 |
% |
INT Towers Limited |
|
Operating* |
|
Nigeria |
|
100 |
% |
100 |
% |
IHS Towers NG Limited |
|
Operating* |
|
Nigeria |
|
100 |
% |
100 |
% |
IHS Côte d’Ivoire S.A. |
|
Operating* |
|
Côte d’Ivoire |
|
100 |
% |
100 |
% |
IHS Cameroon S.A. |
|
Operating* |
|
Cameroon |
|
100 |
% |
100 |
% |
IHS Zambia Limited |
|
Operating* |
|
Zambia |
|
100 |
% |
100 |
% |
IHS Rwanda Limited |
|
Operating* |
|
Rwanda |
|
100 |
% |
100 |
% |
Rwanda Towers Limited |
|
Operating* |
|
Rwanda |
|
100 |
% |
100 |
% |
IHS Kuwait Limited |
|
Operating* |
|
Kuwait |
|
100 |
% |
100 |
% |
IHS Brasil - Cessão de Infraestruturas S.A. |
|
Operating* |
|
Brazil |
|
100 |
% |
100 |
% |
IHS Towers Colombia S.A.S |
|
Operating* |
|
Colombia |
|
100 |
% |
100 |
% |
IHS Peru S.A.C. |
|
Operating* |
|
Peru |
|
100 |
% |
100 |
% |
San Gimignano Imoveis e Adminsitracao Ltda. |
|
Provision of land management |
|
Brazil |
|
100 |
% |
100 |
% |
Nigeria Tower Interco B.V. |
|
Holding company |
|
Netherlands |
|
100 |
% |
100 |
% |
IHS Netherlands GCC B.V. |
|
Holding company |
|
Netherlands |
|
100 |
% |
100 |
% |
IHS Netherlands KSA B.V. |
|
Holding company |
|
Netherlands |
|
100 |
% |
100 |
% |
IHS GCC Limited |
|
Provision of management services |
|
United Arab Emirates |
|
100 |
% |
100 |
% |
IHS Netherlands Connect B.V. |
|
Holding company |
|
Netherlands |
|
100 |
% |
100 |
% |
IHS GCC KW Holding Limited |
|
Provision of management services |
|
United Arab Emirates |
|
70 |
% |
70 |
% |
IHS FinCo Management Limited |
|
Provision of finance |
|
United Arab Emirates |
|
100 |
% |
100 |
% |
IHS GCC MAR Holding Limited |
|
Holding company |
|
United Arab Emirates |
|
100 |
% |
100 |
% |
Global Independent Connect Limited |
|
Operating* |
|
Nigeria |
|
100 |
% |
100 |
% |
IHS KSA Limited |
|
Operating* |
|
Kingdom of Saudi Arabia |
|
100 |
% |
100 |
% |
IHS SSC FZE |
|
Provision of management services |
|
United Arab Emirates |
|
100 |
% |
100 |
% |
IHS Netherlands RSA B.V |
|
Holding company |
|
Netherlands |
|
100 |
% |
100 |
% |
IHS Netherlands BR B.V |
|
Holding company |
|
Netherlands |
|
100 |
% |
100 |
% |
IHS South Africa Holding Proprietary Limited |
|
Holding company |
|
South Africa |
|
100 |
% |
100 |
% |
IHS Towers South Africa Proprietary Limited |
|
Operating* |
|
South Africa |
|
100 |
% |
100 |
% |
IHS Netherlands PHP B.V |
|
Holding company |
|
Netherlands |
|
100 |
% |
100 |
% |
IHS Towers Inc. |
|
Provision of management services |
|
United States of America |
|
100 |
% |
100 |
% |
IHS Netherlands EGY B.V. |
|
Holding company |
|
Netherlands |
|
100 |
% |
100 |
% |
IHS Telecom Towers Egypt S.A.E. |
|
Operating* |
|
Egypt |
|
80 |
% |
80 |
% |
Skysites Americas Ltda |
|
Operating* |
|
Brazil |
|
** |
|
100 |
% |
Wi-Fi Mundial Ltda. |
|
Operating* |
|
Brazil |
|
100 |
% |
100 |
% |
IHS Fiber Brasil Participações Ltda. |
|
Holding company |
|
Brazil |
|
** |
|
100 |
% |
IHS Fiber Brasil - Cessão de Infraestruturas Ltda. |
|
Holding company |
|
Brazil |
|
100 |
% |
100 |
% |
I-Systems Soluções de Infraestrutura S.A. |
|
Operating* |
|
Brazil |
|
51 |
% |
51 |
% |
Centennial Towers Colombia S.A.S. |
|
Operating* |
|
Colombia |
|
100 |
% |
100 |
% |
Polar Breeze Colombia S.A.S |
|
Operating* |
|
Colombia |
|
100 |
% |
100 |
% |
Centennial Towers Brasil Cooperatief U.A. |
|
Holding company |
|
Netherlands |
|
100 |
% |
100 |
% |
Centennial Towers of Brasil B.V. |
|
Holding company |
|
Netherlands |
|
100 |
% |
100 |
% |
Centennial Towers of Colombia Ltd. |
|
Financing company |
|
British Virgin Islands |
|
100 |
% |
100 |
% |
IHS CNT Brasil Torres de Telecomunicacoes Ltda. |
|
Operating* |
|
Brazil |
|
** |
|
100 |
% |
Polar Breeze Empreendimentos Ltda. |
|
Operating* |
|
Brazil |
|
** |
|
100 |
% |
IHS E-Services (NG) Limited |
|
Provision of management services |
|
Nigeria |
|
100 |
% |
— |
|
*All operating subsidiaries provide telecommunication support services as their principal activity.
**Entity liquidated after an internal merger.
F-78
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
The shares of the Parent are widely owned by various investors. No investor has the full controlling right over the Company.
30.2Key management personnel
The compensation paid or payable to key management for employee services is shown below:
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$’000 |
|
$’000 |
Key management compensation |
|
|
|
|
|
|
Short‑term employee benefits |
|
18,354 |
|
19,980 |
|
25,537 |
Post‑employment benefits |
|
154 |
|
1,723 |
|
105 |
|
|
18,508 |
|
21,703 |
|
25,642 |
Share-based payments |
|
6,696 |
|
5,380 |
|
9,795 |
|
|
25,204 |
|
27,083 |
|
35,437 |
Key management during in the year ended December 31, 2023 included members of the Executive team (Sam Darwish, William Saad, Mustafa Tharoo, Mohamad Darwish, Ayotade Oyinlola, William Bates (until September 30, 2023), Colby Synesael and Steve Howden) and Non-Executive Directors.
30.3Other related party transactions and balances
During the year ended December 31, 2023, DAR Telecom Consulting LLC (“DAR Telecom”) was paid $Nil (2022: $175,000, 2021: $1,125,384) for services provided by Mr Sam Darwish, the Chairman & Group Chief Executive Officer. DAR Telecom is controlled by Mr Darwish. These amounts are included in Key Management Compensation.
During the year ended December 31, 2023, DAR Telecom invoiced the Group for medical insurance premiums it had paid on behalf of the Group for $Nil (2022: $Nil, 2021: $85,163). Included in these amounts are $Nil (2022: $Nil, 2021: $38,330) that relate to Mr Darwish and are included in Key Management Compensation.
During the year ended December 31, 2023, the Group incurred costs on behalf of Mr Darwish of $Nil (2022: $26,910, 2021: $551,574) which were fully repaid by DAR Telecom.
At December 31, 2023, the Group had a receivable of $Nil (2022: $Nil, 2021: $551,574) from DAR Telecom.
During the year ended December 31, 2022 and in prior years, the Group was provided corporate administration services by CKLB International Management Limited (“CKLB”). Mr Christian Li and Mrs Kathleen Lai, who served as directors of IHS Holding Limited until October 13, 2021, are directors of CKLB. The fees paid for the year ended December 31, 2021 up to the date of their resignation were $300,935.
During the year ended December 31, 2022, the Group entered into an arm’s length agreement to sub-lease office space from a subsidiary company of Wendel Group, a significant shareholder of the Company. Under the subs-lease agreement, the Group paid rent and utilities amounting to $366,896 (2022: rent and utilities of $343,600 and a deposit of $195,298, 2021: $Nil).
During the year ended December 31, 2023, we entered into an arm’s length agreement for the provision of consulting services from Teneo Strategy LLC (“Teneo Strategy”). Ms Ursula Burns, a Non-Executive Director, is the Chairwoman of the Board of Teneo Worldwide, LLC. The total fees paid to Teneo Strategy for the year ended December 31, 2023 were $750,000.
There were no other material transactions or balances between the Group and its key management personnel or members of their close family.
F-79
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
31.Business Combinations
For acquisitions that meet the definition of a business combination, the Group applies the acquisition method of accounting where assets acquired and liabilities assumed are recorded at fair value at the date of each acquisition, and the results of operations are included with those of the Group from the dates of the respective acquisitions. All acquisitions completed in 2022 met the definition of a business as defined, and were accounted for as business combinations with the exception of the additional stages of the Kuwait Acquisition completed in 2022 and 2023 which are accounted for as assets acquisitions. The Group completed one additional stage of the Kuwait Acquisition during the year ended December 31, 2023.
MTN telecom towers in South Africa
IHS Holding Limited, through its subsidiary IHS Towers South Africa Proprietary Limited, completed the acquisition of a portfolio of towers, comprising 5,691 towers, in South Africa from MTN South Africa on May 31, 2022, which includes an agreement to provide Managed Services, including to approximately 7,100 additional MTN South Africa sites. IHS will own 70% of the South African towers business with the remaining 30% to be owned by a B-BBEE consortium. At the date of issue of these financial statements, IHS owns 100% of the business as the transfer of the non-controlling interest has not been finalized and hence no non-controlling interest has been recognized.
The goodwill of $64.4 million includes goodwill attributable to a new market penetration for the Group. None of the goodwill recognized is currently expected to be deductible for income tax purposes.
The acquisition accounting was completed in May 2023. As IFRS 3 requires fair value adjustments to be recorded with effect from the date of acquisition, this requires re-presentation of previously reported financial results. The following table summarizes the consideration paid and the assets acquired at the acquisition date, and the amounts of revenue and loss of the acquiree since the acquisition date included in the condensed consolidated statement of loss and other comprehensive income/(loss).
|
|
As reported |
|
|
|
As re-presented |
|
|
2022 |
|
2022 |
|
2022 |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
Gross consideration |
|
421,239 |
|
— |
|
421,239 |
Net cash consideration |
|
421,239 |
|
— |
|
421,239 |
|
|
|
|
|
|
|
Identifiable assets acquired and liabilities assumed: |
|
|
|
|
|
|
Towers and tower equipment |
|
251,683 |
|
— |
|
251,683 |
Customer related intangible asset |
|
127,957 |
|
(6,492) |
|
121,465 |
Network related intangible asset |
|
67,837 |
|
1,904 |
|
69,741 |
Right of use asset |
|
211,315 |
|
621 |
|
211,936 |
Lease liabilities |
|
(211,315) |
|
(621) |
|
(211,936) |
Deferred tax |
|
(52,864) |
|
1,239 |
|
(51,625) |
Provisions for other liabilities and charges |
|
(34,419) |
|
— |
|
(34,419) |
Total identifiable net assets acquired |
|
360,194 |
|
(3,349) |
|
356,845 |
|
|
|
|
|
|
|
Goodwill |
|
61,045 |
|
3,349 |
|
64,394 |
|
|
|
|
|
|
|
Revenue — post‑acquisition |
|
|
|
|
|
71,398 |
Loss — post‑acquisition |
|
|
|
|
|
(20,542) |
São Paulo Cinco Locação de Torres Ltda.
IHS Holding Limited acquired 100% of the share capital of São Paulo Cinco Locação de Torres Ltda. (“GTS SP5”) on March 17, 2022. The acquisition is consistent with the Group’s strategy to expand in the Latin American region.
F-80
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
The goodwill of $54.6 million arising from the acquisition is attributable to the enhanced market presence in Brazil, the complementary service offering and closer alignment to certain customers as it relates to their future deployments. The goodwill recognized is currently expected to be deductible for income tax purposes.
The following table summarizes the consideration paid and the fair value of assets and liabilities acquired at the acquisition date including right of use assets relating to leases which were fully pre-paid prior to acquisition, and the amounts of revenue and profit of the acquiree from the acquisition date included in the condensed consolidated statement of loss and other comprehensive income/(loss).
|
|
2022 |
|
|
$’000 |
|
|
|
Gross consideration |
|
317,188 |
Less: cash in business at the date of acquisition |
|
(1,896) |
Net cash consideration |
|
315,292 |
|
|
|
Identifiable assets acquired and liabilities assumed: |
|
|
Towers and tower equipment |
|
13,395 |
Land |
|
885 |
Customer related intangible asset |
|
48,353 |
Network related intangible asset |
|
2,520 |
Right of use asset |
|
266,666 |
Trade and other receivables |
|
23,575 |
Lease liabilities |
|
(4,282) |
Trade and other payables |
|
(4,222) |
Deferred tax |
|
(86,239) |
Total identifiable net assets acquired |
|
260,651 |
|
|
|
Goodwill |
|
54,641 |
|
|
|
Revenue — post‑acquisition |
|
34,129 |
Profit — post‑acquisition* |
|
6,340 |
*Includes profit up until an internal merger of the entity.
IHS Kuwait Limited
In the 2020 financial year IHS GCC KW Holding Limited (‘IHS GCC KW’), a subsidiary of IHS Holding Limited completed the first two stages of the acquisition of 1,620 towers from Mobile Telecommunications Company K.S.C.P. (‘Zain Kuwait’) comprising 1,162 towers. During April 2021, October 2021, September 2022 and August 2023 IHS GCC KW completed the third, fourth, fifth and sixth stages of the acquisition of 1,620 towers from Zain Kuwait comprising 67, 126, 43 and 101 towers respectively.
The remaining 121 towers are managed and operated under a Managed Services agreement until such time as these towers can legally be transferred. IHS GCC KW transferred the purchase right to IHS Kuwait Limited for the Construction, Erection and Maintenance of Wired and Wireless Communication and Radar Towers and Stations with Limited Liability (‘IHS Kuwait’) who operates the towers as a standalone business. As part of the agreement, IHS Kuwait also assumed existing supplier contracts and land leases, allowing it to apply the Group business processes and deliver services immediately after the assignment of the towers.
F-81
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
As part of the agreement, Zain Kuwait subscribed for shares in IHS GCC KW representing 30% of the share capital of IHS GCC KW by issuing a loan note to IHS GCC KW. The acquisition is consistent with the Group’s strategy to expand in selected geographic areas.
The following table summarizes the consideration paid and the fair value of assets and liabilities acquired at the acquisition date of the 43 and 101 towers acquired in 2022 and 2023 respectively, and the amounts of revenue and profit/(loss) of the acquiree since the acquisition date included in the condensed consolidated statement of loss and other comprehensive income/(loss).
|
|
2023 |
|
2022 |
|
|
$’000 |
|
$’000 |
|
|
|
|
|
Gross consideration |
|
6,408 |
|
2,729 |
Less: consideration received in exchange for a retained 30% interest (by Zain Kuwait) in IHS GCC KW |
|
(1,922) |
|
(819) |
Net consideration for 70% controlling interest in the acquired towers |
|
4,486 |
|
1,910 |
|
|
|
|
|
Identifiable assets acquired and liabilities assumed: |
|
|
|
|
Towers and tower equipment |
|
5,576 |
|
1,032 |
Customer related assets |
|
2,224 |
|
1,947 |
Network-related assets |
|
766 |
|
671 |
Trade and other payables |
|
(2,158) |
|
(921) |
Total identifiable net assets acquired (at 100%) |
|
6,408 |
|
2,729 |
|
|
|
|
|
Goodwill |
|
— |
|
— |
|
|
|
|
|
Non-controlling interest |
|
1,922 |
|
819 |
|
|
|
|
|
Revenue — post‑acquisition |
|
n.a. |
|
n.a. |
Loss — post‑acquisition |
|
n.a. |
|
n.a. |
32Capital commitments and contingent liabilities
32.1Capital commitments
The Group was committed to the purchase of property, plant and equipment of about $162.9 million as at December 31, 2023 (2022: $337.0 million).
32.2Contingent liabilities
The Group has contingent liabilities in respect of legal claims arising in the ordinary course of business. The Group reviews these matters in consultation with internal and external legal counsel to determine on a case-by-case basis whether a loss from each of these matters is probable, possible or remote.
The Group’s possible contingent liabilities in respect of litigations and claims amounted to $11.9 million at the end of the reporting period (2022: $3.8 million).
Based on legal advice received, the Group’s liability is not considered probable, thus no provisions have been made in these financial statements.
F-82
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
In the ordinary course of business, the Group is subject to regular tax reviews. A number of tax disputes have been raised in multiple jurisdictions, some of which are ongoing, including in Nigeria.
The Group exercises judgement and makes estimates to determine whether to recognize provisions and makes disclosures for contingent liabilities, where considered necessary.
In respect of the ongoing tax disputes, the Group is vigorously defending its position and believes that no present obligation has been established.
The Group has made a provision for uncertain tax positions and believes that the probable quantum of potential future cash outflows in relation to these tax disputes is unlikely to exceed the amount provided in this regard.
F-83
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
33.Events after the reporting period
On February 7, 2024, IHS Nigeria and Airtel Nigeria, a subsidiary of Airtel Africa Plc, entered into an agreement. In this agreement, Airtel Nigeria committed to take 3,950 tenancies over the next five years (with the majority expected over the years ended December 31, 2024 and 2025) and extended the term of its existing tenancies covering approximately 6,000 tenancies until December 2031. The agreement includes 2,500 colocations in addition to 5G amendments and build to suit sites to be owned and operated by IHS Nigeria.
On January 16, 2024, IHS and Wendel announced that we had entered into a settlement agreement in relation to the ongoing litigation, and that as part of the settlement agreement, certain changes to our Articles of Association will be proposed for shareholders’ approval at our annual general meeting for fiscal year 2024.
In late January 2024, the Nigerian Naira continued to experience volatility and experienced a devaluation. The NAFEM rate depreciated by 60.5%, from approximately ₦907.1 to $1.00 as of December 31, 2023 to approximately ₦1,455.6 to $1.00 as of January 31, 2024, while the Bloomberg rate depreciated by 53.6%, from approximately ₦911.7 to $1.00 as of December 31, 2023 to approximately ₦1,400 to $1.00 as of February 1, 2024. As of the issue date of these consolidated financial statements, IHS cannot reasonably estimate the financial effect from this devaluation.
On February 21, 2024, IHS entered into a Share Purchase Agreement to sell its subsidiary, IHS Peru S.A.C., to affiliates of SBA Communications Corporation. Closing of this transaction remains subject to customary conditions, including finalization of due diligence.
These assets were included in assets held for sale at December 31, 2023.
In March 2024, the available commitments under the IHS Holding 2022 Term Loan were voluntarily reduced by $70.0 million. This reduction resulted in the undrawn portion of the facility decreasing from $130.0 million to $60.0 million, which can be applied toward general corporate purposes.
As of March 8, 2024, NGN 15.0 billion (approximately $16.5 million) has been drawn down under this facility.
As of March 8, 2024, ZAR 278.9 million (approximately $15.2 million) has been utilized under this facility.
In February 2024, €56.1 million (approximately $61.9 million) and XOF 7,109.0 million (approximately $12.0 million) was drawn down under the CIV 2023 Term Loan and the proceeds were applied towards, inter alia, the repayment of the IHS Côte d’Ivoire S.A. Facility.
F-84
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
IHS Holding Limited entered into a $270.0 million loan agreement on March 8, 2024. The loan is guaranteed by IHS Netherlands Holdco B.V., IHS Netherlands NG1 B.V., IHS Towers NG Limited, IHS Netherlands NG2 B.V., Nigeria Tower Interco B.V., INT Towers Limited and IHS Nigeria. The interest rate per annum applicable to loans made under the IHS Holding 2024 Term Facility is equal to Term SOFR, plus a margin (ranging from 4.5% to 7.0% per annum over the duration of the IHS Holding 2024 Term Facility). As of March 8, 2024, there are no amounts drawn down and outstanding under the IHS Holding 2024 Term Facility.
F-85
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
SCHEDULE 1 - COMPANY STATEMENT OF PROFIT/(LOSS) AND OTHER COMPREHENSIVE INCOME/(LOSS)
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
Administrative expenses |
|
(267,382) |
|
(264,011) |
|
(164,706) |
Other income |
|
429,698 |
|
2,329 |
|
— |
Operating profit/(loss) |
|
162,316 |
|
(261,682) |
|
(164,706) |
Finance income |
|
76,753 |
|
67,927 |
|
17,162 |
Finance costs |
|
(127,044) |
|
(135,783) |
|
(28,804) |
Profit/(loss) before income tax |
|
112,025 |
|
(329,538) |
|
(176,348) |
Income tax expense |
|
— |
|
— |
|
(1,356) |
Profit/(loss) for the year |
|
112,025 |
|
(329,538) |
|
(177,704) |
F-86
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
COMPANY STATEMENT OF FINANCIAL POSITION
|
|
|
|
2023 |
|
2022 |
|
|
Note |
|
$’000 |
|
$’000 |
Non-current assets |
|
|
|
|
|
|
Property, plant and equipment |
|
|
|
26 |
|
23 |
Other intangible assets |
|
|
|
1,357 |
|
514 |
Investments in subsidiaries |
|
|
|
5,508,489 |
|
5,479,157 |
Amounts due from related parties |
|
|
|
774,066 |
|
781,299 |
Derivative financial instrument assets |
|
|
|
230 |
|
1,821 |
|
|
|
|
6,284,168 |
|
6,262,814 |
Current assets |
|
|
|
|
|
|
Amounts due from related parties |
|
|
|
322,830 |
|
351,675 |
Derivative financial instrument assets |
|
|
|
565 |
|
— |
Trade and other receivables |
|
|
|
16,964 |
|
17,858 |
Cash and cash equivalents |
|
|
|
67,335 |
|
245,373 |
|
|
|
|
407,694 |
|
614,906 |
|
|
|
|
|
|
|
TOTAL ASSETS |
|
|
|
6,691,862 |
|
6,877,720 |
|
|
|
|
|
|
|
Current liabilities |
|
|
|
|
|
|
Trade and other payables |
|
|
|
14,035 |
|
14,783 |
Borrowings |
|
2 |
|
10,200 |
|
9,847 |
Amounts due to related parties |
|
|
|
336,510 |
|
642,593 |
|
|
|
|
360,745 |
|
667,223 |
Non-current liabilities |
|
|
|
|
|
|
Borrowings |
|
2 |
|
1,358,290 |
|
1,354,624 |
Financial guarantees |
|
2 |
|
2,357 |
|
— |
|
|
|
|
1,360,647 |
|
1,354,624 |
|
|
|
|
|
|
|
TOTAL LIABILITIES |
|
|
|
1,721,392 |
|
2,021,847 |
|
|
|
|
|
|
|
Stated capital |
|
|
|
5,394,812 |
|
5,311,953 |
Accumulated losses |
|
|
|
(617,504) |
|
(730,396) |
Other reserves |
|
|
|
193,162 |
|
274,316 |
TOTAL EQUITY |
|
|
|
4,970,470 |
|
4,855,873 |
|
|
|
|
|
|
|
TOTAL EQUITY AND LIABILITIES |
|
|
|
6,691,862 |
|
6,877,720 |
F-87
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
COMPANY STATEMENT OF CHANGES IN EQUITY
|
|
|
|
|
|
|
|
|
|
|
Stated |
|
Accumulated |
|
Other |
|
Total |
|
|
capital |
|
losses |
|
reserves |
|
Equity |
|
|
$’000 |
|
$’000 |
|
$’000 |
|
$’000 |
|
|
|
|
|
|
|
|
|
Balance at Jan 1, 2021 |
|
4,530,870 |
|
(225,733) |
|
687,046 |
|
4,992,183 |
Issue of shares net of transaction costs |
|
349,846 |
|
— |
|
— |
|
349,846 |
Options converted to shares |
|
342,768 |
|
— |
|
(342,768) |
|
— |
Share-based payment expense |
|
— |
|
— |
|
13,003 |
|
13,003 |
Other reclassifications related to share-based payment |
|
— |
|
1,019 |
|
(5,084) |
|
(4,065) |
Total transactions with owners of the Company |
|
692,614 |
|
1,019 |
|
(334,849) |
|
358,784 |
Loss for the year |
|
— |
|
(177,704) |
|
— |
|
(177,704) |
Balance at Dec 31, 2021 |
|
5,223,484 |
|
(402,418) |
|
352,197 |
|
5,173,263 |
|
|
|
|
|
|
|
|
|
Balance at Jan 1, 2022 |
|
5,223,484 |
|
(402,418) |
|
352,197 |
|
5,173,263 |
Options converted to shares |
|
88,469 |
|
— |
|
(88,469) |
|
— |
Share-based payment expense |
|
— |
|
— |
|
13,423 |
|
13,423 |
Other reclassifications related to share-based payment |
|
— |
|
1,560 |
|
(2,835) |
|
(1,275) |
Total transactions with owners of the Company |
|
88,469 |
|
1,560 |
|
(77,881) |
|
12,148 |
Loss for the year |
|
— |
|
(329,538) |
|
— |
|
(329,538) |
Balance at Dec 31, 2022 |
|
5,311,953 |
|
(730,396) |
|
274,316 |
|
4,855,873 |
|
|
|
|
|
|
|
|
|
Balance at Jan 1, 2023 |
|
5,311,953 |
|
(730,396) |
|
274,316 |
|
4,855,873 |
Shares repurchased and canceled through buyback program |
|
(10,037) |
|
— |
|
— |
|
(10,037) |
Options converted to shares |
|
92,896 |
|
— |
|
(92,896) |
|
— |
Share-based payment expense |
|
— |
|
— |
|
13,168 |
|
13,168 |
Other reclassifications related to share-based payment |
|
— |
|
867 |
|
(1,426) |
|
(559) |
Total transactions with owners of the Company |
|
82,859 |
|
867 |
|
(81,154) |
|
2,572 |
Profit for the year |
|
— |
|
112,025 |
|
— |
|
112,025 |
Balance at Dec 31, 2023 |
|
5,394,812 |
|
(617,504) |
|
193,162 |
|
4,970,470 |
F-88
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
COMPANY STATEMENT OF CASH FLOWS
|
|
2023 |
|
2022 |
|
2021 |
|
|
$’000 |
|
$’000 |
|
$’000 |
Cash flows from operating activities |
|
|
|
|
|
|
Cash (used in)/generated from operations |
|
(105,822) |
|
(86,202) |
|
15,045 |
Income taxes paid |
|
— |
|
— |
|
(338) |
Net cash (used in)/generated from operating activities |
|
(105,822) |
|
(86,202) |
|
14,707 |
|
|
|
|
|
|
|
Cash flows from investing activities |
|
|
|
|
|
|
Purchase of property, plant and equipment |
|
(35) |
|
— |
|
(206) |
Purchase of software and licenses |
|
(1,351) |
|
(54) |
|
(827) |
Investment in subsidiaries |
|
(33,588) |
|
(439,141) |
|
(439,486) |
Loan disbursed to subsidiaries |
|
(600) |
|
(254,615) |
|
(507,215) |
Loan principal repayment received from subsidiaries |
|
43,007 |
|
47,601 |
|
35,543 |
Loan interest repayment received from subsidiaries |
|
23,632 |
|
39,401 |
|
— |
Interest income received |
|
8,490 |
|
3,270 |
|
264 |
Net cash generated from/(used in) investing activities |
|
39,555 |
|
(603,538) |
|
(911,927) |
|
|
|
|
|
|
|
Cash flows from financing activities |
|
|
|
|
|
|
Capital raised |
|
— |
|
— |
|
378,000 |
Cost of capital raised |
|
— |
|
— |
|
(28,154) |
Shares repurchased and canceled through buyback program |
|
(10,038) |
|
— |
|
— |
Interest paid |
|
(92,549) |
|
(69,075) |
|
— |
Bank loans and bond proceeds received (net of transaction costs) |
|
— |
|
643,785 |
|
979,405 |
Loan receipts from subsidiaries |
|
— |
|
100,000 |
|
— |
Fees on loans and derivative instruments |
|
(10,185) |
|
(11,574) |
|
(11,803) |
Bank loans and bonds repaid |
|
— |
|
(280,000) |
|
— |
Premium paid on derivative instruments |
|
— |
|
(910) |
|
— |
Profits received on derivative instruments |
|
419 |
|
— |
|
— |
Net cash (used in)/generated from financing activities |
|
(112,353) |
|
382,226 |
|
1,317,448 |
|
|
|
|
|
|
|
Net (decrease)/increase in cash and cash equivalents |
|
(178,620) |
|
(307,514) |
|
420,228 |
Cash and cash equivalents at beginning of year |
|
245,373 |
|
554,100 |
|
135,115 |
Effect of movements in exchange rates on cash |
|
582 |
|
(1,213) |
|
(1,243) |
Cash and cash equivalents at end of year |
|
67,335 |
|
245,373 |
|
554,100 |
F-89
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
NOTES TO THE COMPANY FINANCIAL STATEMENTS
| 1. | Basis of Preparation |
The accompanying condensed financial statements of IHS Holding Limited (the “Parent”) should be read in conjunction with the consolidated financial statements and notes thereto of IHS Holding Limited and subsidiaries (collectively, the “Registrant”) included in Part I, Item 8 of the Annual Report. The accompanying condensed financial statements of the Parent have been prepared in accordance with Rule 12-04, Schedule 1 of Regulation S-X.
The Parent’s accounting policies are consistent with those of the Registrant. In the Parent only financial statements, investments in subsidiaries are accounted for at cost less accumulated impairment losses, unless the investment is acquired with a view to its subsequent disposal and the criteria for classification as held-for-sale are met. Transaction fees are included in the acquisition cost. An impairment loss is recognized for the amount by which the investment carrying amount exceeds its recoverable amount. The recoverable amount is the higher of an asset’s fair value less costs of disposal and its value in use.
| 2. | Long term debt |
IHS Holding Limited Notes
On November 29, 2021, IHS Holding Limited issued $500.0 million 5.625% Senior Notes due 2026 (the “2026 Notes”) and $500.0 million 6.250% Senior Notes due 2028 (the “2028 Notes”, and together with the 2026 Notes, the “IHS Holding Notes”), guaranteed by IHS Netherlands Holdco B.V., IHS Netherlands NG1 B.V., IHS Netherlands NG2 B.V., Nigeria Tower Interco B.V., IHS Nigeria Limited, IHS Towers NG Limited and INT Towers Limited.
On or after November 29, 2023, 2024 or 2025, the 2026 Notes may be redeemed (in whole or in part) by the IHS Holding Limited at a price of 102.81250%, 101.40625% and 100.00000%, respectively. On or after November 29, 2024, 2025 or 2026, the 2028 Notes may be redeemed by IHS Holding Limited (in whole or in part) at a price of 103.1250%, 101.5625% and 100.0000%, respectively.
The IHS Holding Notes pay interest semi-annually and the principal is repayable in full on maturity.
IHS Holding (2022) Bullet Term Loan Facility
IHS Holding Limited entered into a $600.0 million term loan agreement in October 2022 (as amended and/or restated from time to time, the “IHS Holding 2022 Term Loan”), between, amongst others, IHS Holding Limited as borrower, Citibank Europe plc, UK Branch as facility agent and certain financial institutions listed therein as original lenders. The loan is guaranteed by IHS Netherlands Holdco B.V., IHS Netherlands NG1 B.V., IHS Towers NG Limited, IHS Netherlands NG2 B.V., Nigeria Tower Interco B.V., INT Towers Limited and IHS Nigeria. Following the initial draw down under this facility of $370.0 million in November 2022, the available commitments were voluntarily reduced by $100.0 million in October 2023 and the availability period on the remaining balance of $130.0 million in available commitments was extended to April 2024 from October 2023. The interest rate per annum applicable to loans made under the IHS Holding 2022 Term Loan is equal to Term SOFR, a credit adjustment spread plus a margin of 3.75% per annum. The IHS Holding 2022 Term Loan is scheduled to terminate on the date falling 36 months from the date of the loan agreement and is repayable in full on that date.
F-90
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
A 5-year schedule of debt maturities is set out below.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Due |
|
Due |
|
Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
Carrying |
|
Less than 1 |
|
Between 2 & 3 |
|
Between 4 & 5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
value |
|
year |
|
years |
|
years |
|
|
Currency |
|
Maturity date |
|
Interest rate |
|
$'000 |
|
$'000 |
|
$'000 |
|
$'000 |
|||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2023 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Term loan |
|
US Dollar |
|
|
|
2025 |
|
|
|
3.75 |
% + CAS + 3M SOFR |
|
370,935 |
|
34,768 |
|
405,055 |
|
— |
Senior Note |
|
US Dollar |
|
|
|
2026 |
|
|
|
5.63 |
% |
|
498,920 |
|
28,125 |
|
556,250 |
|
— |
Senior Note |
|
US Dollar |
|
|
|
2028 |
|
|
|
6.25 |
% |
|
498,635 |
|
31,250 |
|
62,500 |
|
562,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
1,368,490 |
|
94,143 |
|
1,023,805 |
|
562,500 |
In addition to the guarantees set out in note 22, “Borrowings”, IHS Holding Limited is a guarantor for the following:
IHS Côte d’Ivoire S.A. Facility
IHS Côte d’Ivoire S.A. entered into a credit agreement originally in June 2015 (as amended and/or restated from time to time, including in August 2017 and June 2022) with certain financial institutions, split into one tranche with a total commitment of €52.0 million (approximately $57.4 million) (the “CIV Euro Tranche”), and another tranche with a total commitment of XOF 44.6 billion (approximately $75.1 million) (the “CIV XOF Tranche” and, together with the CIV Euro Tranche, the “IHS Côte d’Ivoire S.A. Facility”). The IHS Côte d’Ivoire S.A. Facility is guaranteed by IHS Holding Limited. The CIV Euro Tranche has an interest rate of 3.00% plus 3 Month EURIBOR, (subject to a zero floor), and the CIV XOF Tranche has an interest rate of 5.00%. The IHS Côte d’Ivoire S.A. Facility contains customary information and negative covenants and requires IHS Côte d’Ivoire S.A. to observe certain customary affirmative covenants, subject to certain agreed exceptions and materiality carve-outs. The covenants include that IHS Côte d’Ivoire S.A. maintain specified net debt to EBITDA ratios and interest coverage ratios, each as defined therein.
IHS Zambia Limited Facility
IHS Zambia Limited entered into two facilities with a common terms agreement originally in December 2020 (as amended and/or restated from time to time, including in February 2021 and January 2023) with a total commitment of $95.0 million with certain financial institutions (the “Zambia Facility”), split into a facility for an aggregate commitment representing $75.0 million and a second facility for an aggregate commitment representing $20.0 million. The Zambia Facility is guaranteed by IHS Holding Limited, and was fully utilized as of March 2021. The Zambia Facility has an interest rate of 5.0% plus 3 Month Term SOFR and a credit adjustment spread ranging between 0.11% to 0.43% and contains customary information and negative covenants and requires IHS Zambia Limited to observe certain customary affirmative covenants, subject to certain agreed exceptions and materiality carve-outs. The covenants include that IHS Zambia Limited maintain specified net debt to EBITDA ratios and interest coverage ratios, each as defined in the agreement. The respective facilities will terminate in December 2027.
IHS Netherlands Holdco B.V. Notes
On each of September 18, 2019 and July 31, 2020, our wholly owned subsidiary, IHS Netherlands Holdco B.V. (“Holdco BV”), issued a total of $510.0 million 7.125% Senior Notes due 2025 (the “2025 Notes”), and $940.0 million 8.0% Senior Notes due 2027 (the “2027 Notes”) guaranteed by IHS Netherlands NG1 B.V., IHS Netherlands NG2 B.V., Nigeria Tower Interco B.V., IHS Nigeria, IHS Towers NG Limited and INT Towers, and (since June 22, 2021) IHS Holding Limited. On June 22, 2021, pursuant to a successful consent solicitation, Holdco B.V. also effected certain amendments to the indenture governing the notes to, among other things, expand the “restricted group” to encompass IHS Holding Limited and all of IHS Holding Limited’s subsidiaries (which would then be subject to the covenants and events of default under the indenture), and to make certain other consequential changes to the negative covenants and restrictions resulting from the larger group structure.
F-91
|
IHS HOLDING LIMITED CONSOLIDATED ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2023 |
|
On November 30, 2021, the 2025 Notes were subsequently redeemed upon the successful issuance by IHS Holding of the IHS Holding Notes (as defined below). The 2027 Notes mature on September 18, 2027, and pay interest semi-annually, with the principal repayable in full on maturity. On or after September 18, 2023 or 2024, the 2027 Notes may be redeemed (in whole or in part) at a price of 102.000% and 100.000%, respectively.
The indenture contains customary negative covenants and restrictions, including, but not limited to, our ability to: incur or guarantee additional indebtedness and issue certain preferred stock; make certain restricted payments and investments, including dividends or other distributions; create or incur certain liens; enter into agreements that restrict the ability of restricted subsidiaries to pay dividends; transfer or sell certain assets; merge or consolidate with other entities and enter into certain transactions with affiliates.
IHS (Nigeria) Limited and INT Towers Limited
IHS Holding Limited signed a guarantee dated October 12, 2022, with IHS Holding Limited as guarantor and BP Oil International Limited as beneficiary, in relation to certain crude oil and/or petroleum product transactions entered into by IHS (Nigeria) Limited and INT Towers Limited.
Valuation of guarantees
The fair value of all guarantees was $2.4 million as at December 31, 2023 (2022: $Nil).
F-92
Exhibit 4.12
|
IHS Holding Limited 1 Cathedral Piazza 123 Victoria Street London, SW1E 5BP United Kingdom www.ihstowers.com |
To:Citibank Europe PLC, UK Branch (the “Facility Agent”)
Attention :Sona Sharma
5 February 2024
IHS Holding 2022 Bullet Term Loan – Amendment 2
Dear Sirs
| 1. | Introduction |
| 1.1 | We refer to the US$500,000,000 term loan facility agreement originally dated 28 October 2022, as amended from time to time, between, amongst others, the Facility Agent and IHS Holding Limited (the “Company”), Absa Bank Limited (acting through its Corporate and Investment Banking division), Citibank N.A., London Branch, FirstRand Bank Limited (London Branch), acting through its Rand Merchant Bank division and Standard Chartered Bank (the “Facility Agreement”). |
| 1.2 | Capitalised terms defined in the Facility Agreement shall have the same meaning when used herein unless expressly defined in this letter (the “Letter”). |
| 1.3 | The provisions of clause 1.2 (Construction) of the Facility Agreement apply to this Letter as though they were set out in full in this Letter with all necessary consequential changes; and with references in that clause to “this Agreement” being construed as references to this Letter. |
| 2. | Request for Amendment |
| 2.1 | In accordance with Clause 38.1 (Required Consents) of the Facility Agreement, the Company hereby requests the consent of the Majority Lenders to the following amendment to the Facility Agreement: |
| 2.2 | Clause 20.2(a) (Interest Cover Ratio) of the Facility Agreement shall be deleted in its entirety and replaced with the following: |
“On each Quarter Date, the Interest Cover Ratio:
(i) |
in respect of any Relevant Period ending up to and including 31 December 2023 shall not be less than 2.75:1; and |
(ii) |
in respect of any Relevant Period thereafter shall not be less than 2.50:1.” |
| 3. | Amendment |
With effect from the date of this Letter, each of the Lenders agrees to waive any breach of representation, warranty, undertaking, covenant, Default, or Event of Default under or in respect of any Finance Document resulting from this Letter.
| 4. | Miscellaneous |
| 4.1 | This Letter is a Finance Document. |
|
|
|
|
| 4.2 | From the date of this Letter, the Facility Agreement and this Letter shall be read and construed as one document. |
| 4.3 | Except as otherwise provided in this Letter, the Finance Documents remain in full force and effect. |
| 4.4 | No amendment or waiver of any provision of any Finance Document is given by the terms of this Letter and the Finance Parties expressly reserve all their rights and remedies in respect of any breach of, or other default under, the Finance Documents. |
| 4.5 | A person who is not a party to this Letter has no right under the Contracts (Right of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Letter. |
| 4.6 | This Letter may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Letter. |
| 5. | Governing law |
| 5.1 | This Letter and any non-contractual obligations arising out of or in connection with it are governed by English law. |
| 5.2 | Clause 34 (Notices), Clause 39 (Confidential Information) and 43 (Enforcement) of the Facility Agreement shall apply to this Letter, mutatis mutandis, as if references in those provisions of the Facility Agreement to the Facility Agreement and Finance Document shall be construed as references to this Letter. |
2
|
|
|
|
Please sign and return a copy of this Letter to confirm your agreement to the above.
Yours faithfully
/s/ Stephen Howden |
|
|
Name: Steve Howden |
|
|
Title: Authorised Signatory |
|
|
For and on behalf of |
|
|
IHS Holding Limited |
|
|
3
|
|
|
|
/s/ Alasdair Garnham |
|
|
Name: Alasdair Garnham |
|
|
Title: Vice President |
|
|
For and on behalf of |
|
|
Citibank Europe PLC, UK Branch as Facility Agent |
|
|
4
Exhibit 4.13
|
IHS Netherlands Holdco B.V. Herikerbergweg 88 Amsterdam |
To:Ecobank Nigeria Limited (the “Facility Agent”)
Attention : Olakunle Lowo
15 February 2024
Unsecured NGN Term Facility Agreement – Amendment 1
Dear Sirs
1. |
Introduction |
1.1 |
We refer to the up to NGN 165,000,000,000 term credit facility dated 3 January 2023 between, amongst others, IHS Netherlands Holdco B.V (“Holdco”), each of IHS (Nigeria) Limited, IHS Towers NG Limited and INT Towers Limited as the borrower, the Facility Agent and each of the financial institutions named therein as original lenders (the “Facility Agreement”). |
1.2 |
Capitalised terms defined in the Facility Agreement shall have the same meaning when used herein unless expressly defined in this letter (the “Letter”). |
1.3 |
The provisions of clause 1.2 (Construction) of the Facility Agreement apply to this Letter as though they were set out in full in this Letter with all necessary consequential changes; and with references in that clause to “this Agreement” being construed as references to this Letter. |
2. |
Request for Amendment |
2.1 |
In accordance with Clause 37.1 (Required Consents) of the Facility Agreement, Holdco hereby requests the consent of the Majority Lenders to the following amendment to the Facility Agreement: |
2.2 |
Clause 22.2(b) (Interest Cover Ratio) of the Facility Agreement shall be deleted in its entirety and replaced with the following: |
“Interest Coverage Ratio: On each Quarter Date, the Interest Cover Ratio:
(i) |
in respect of any Relevant Period ending up to and including 31 December 2023 shall not be less than 2.75:1; |
(ii) |
in respect of any Relevant Period ending 31 March 2024 up to and including 31 December 2025 shall not be less than 2.50:1; and |
(iii) |
in respect of any Relevant Period ending 31 March 2026 or later shall not be less than 2.75:1.” |
3. |
Amendment |
With effect from the date of this Letter, each of the Lenders agrees to waive any breach of representation, warranty, undertaking, covenant, Default, or Event of Default under or in respect of any Finance Document resulting from this Letter.
4. |
Miscellaneous |
4.1This Letter is a Finance Document.
|
|
|
|
4.2 |
From the date of this Letter, the Facility Agreement and this Letter shall be read and construed as one document. |
4.3 |
Except as otherwise provided in this Letter, the Finance Documents remain in full force and effect. |
4.4 |
No amendment or waiver of any provision of any Finance Document is given by the terms of this Letter and the Finance Parties expressly reserve all their rights and remedies in respect of any breach of, or other default under, the Finance Documents. |
4.5 |
A person who is not a party to this Letter has no right under the Contracts (Right of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Letter. |
4.6 |
This Letter may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Letter. |
5. |
Governing law |
5.1 |
This Letter and any non-contractual obligations arising out of or in connection with it are governed by English law. |
5.2 |
Clause 34 (Notices), Clause 39 (Confidential Information) and 43 (Enforcement) of the Facility Agreement shall apply to this Letter, mutatis mutandis, as if references in those provisions of the Facility Agreement to the Facility Agreement and Finance Document shall be construed as references to this Letter. |
2
|
|
|
|
Please sign and return a copy of this Letter to confirm your agreement to the above.
Yours faithfully
/s/ Mohamad Darwish |
|
|
Name: Mohamad Darwish |
|
|
Title: Authorised Signatory |
|
|
For and on behalf of |
|
|
IHS Netherlands Holdco B.V. |
|
|
/s/ Laurens Klein |
|
|
Name: Laurens Klein |
|
|
Title: Authorised Signatory |
|
|
For and on behalf of |
|
|
IHS Netherlands Holdco B.V. |
|
|
3
|
|
|
|
/s/ Omoboye Odu |
|
|
Name: Omoboye Odu |
|
|
Title: Head, Global Corporates |
|
|
For and on behalf of |
|
|
Ecobank Nigeria Limited as Facility Agent (acting on the instructions of the Majority Lenders) |
|
|
4
Exhibit 4.14
|
IHS Netherlands Holdco B.V. Herikerbergweg 88 Amsterdam |
To:Ecobank Nigeria Limited (the “Facility Agent”)
Attention : Olakunle Lowo
15 February 2024
Unsecured NGN RCF Agreement – Amendment 1
Dear Sirs
1. |
Introduction |
1.1 |
We refer to the up to NGN 55,000,000,000 revolving credit facility dated 3 January 2023 between, amongst others, IHS Netherlands Holdco B.V (“Holdco”), each of IHS (Nigeria) Limited, IHS Towers NG Limited and INT Towers Limited as the borrower, the Facility Agent and each of the financial institutions named therein as original lenders (the “Facility Agreement”). |
1.2 |
Capitalised terms defined in the Facility Agreement shall have the same meaning when used herein unless expressly defined in this letter (the “Letter”). |
1.3 |
The provisions of clause 1.2 (Construction) of the Facility Agreement apply to this Letter as though they were set out in full in this Letter with all necessary consequential changes; and with references in that clause to “this Agreement” being construed as references to this Letter. |
2. |
Request for Amendment |
2.1 |
In accordance with Clause 37.1 (Required Consents) of the Facility Agreement, Holdco hereby requests the consent of the Majority Lenders to the following amendment to the Facility Agreement: |
2.2 |
Clause 22.2(b) (Interest Cover Ratio) of the Facility Agreement shall be deleted in its entirety and replaced with the following: |
“Interest Coverage Ratio: On each Quarter Date, the Interest Cover Ratio:
(i) |
in respect of any Relevant Period ending up to and including 31 December 2023 shall not be less than 2.75:1; and |
(ii) |
in respect of any Relevant Period thereafter shall not be less than 2.50:1.” |
3. |
Amendment |
With effect from the date of this Letter, each of the Lenders agrees to waive any breach of representation, warranty, undertaking, covenant, Default, or Event of Default under or in respect of any Finance Document resulting from this Letter.
4. |
Miscellaneous |
4.1 |
This Letter is a Finance Document. |
4.2 |
From the date of this Letter, the Facility Agreement and this Letter shall be read and construed as one document. |
|
|
|
|
4.3 |
Except as otherwise provided in this Letter, the Finance Documents remain in full force and effect. |
4.4 |
No amendment or waiver of any provision of any Finance Document is given by the terms of this Letter and the Finance Parties expressly reserve all their rights and remedies in respect of any breach of, or other default under, the Finance Documents. |
4.5 |
A person who is not a party to this Letter has no right under the Contracts (Right of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Letter. |
4.6 |
This Letter may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Letter. |
5. |
Governing law |
5.1 |
This Letter and any non-contractual obligations arising out of or in connection with it are governed by English law. |
5.2 |
Clause 34 (Notices), Clause 39 (Confidential Information) and 43 (Enforcement) of the Facility Agreement shall apply to this Letter, mutatis mutandis, as if references in those provisions of the Facility Agreement to the Facility Agreement and Finance Document shall be construed as references to this Letter. |
2
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Please sign and return a copy of this Letter to confirm your agreement to the above.
Yours faithfully
/s/ Mohamad Darwish |
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Name: Mohamad Darwish |
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Title: Authorised Signatory |
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For and on behalf of |
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IHS Netherlands Holdco B.V. |
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/s/ Laurens Klein |
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Name: Laurens Klein |
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Title: Authorised Signatory |
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For and on behalf of |
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IHS Netherlands Holdco B.V. |
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3
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/s/ Omoboye Odu |
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Name: Omoboye Odu |
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Title: Head, Global Corporates |
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For and on behalf of |
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Ecobank Nigeria Limited as Facility Agent (acting on the instructions of the Majority Lenders) |
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4
Exhibit 4.15
DATED 8 MARCH 2024
Facility Agreement
USD 270,000,000 Term Credit Facility
between
IHS Holding Limited
as Company
Standard Chartered Bank
as Arranger
The Financial Institutions
as Original Lenders
Each Entity listed in Part 2 of Schedule 1
as Original Facility Guarantors
and
Standard Chartered Bank
as Facility Agent
White & Case LLP
PO Box 9705
Level 9, ICD Brookfield, Al Mustaqbal Street
Dubai International Financial Centre
Dubai
United Arab Emirates
Table of Contents
|
|
Page |
|
|
|
1. |
Definitions and Interpretation |
1 |
2. |
The Facility |
39 |
3. |
Purpose |
42 |
4. |
Conditions of Utilisation |
42 |
5. |
Utilisation |
43 |
6. |
Repayment |
44 |
7. |
Prepayment and Cancellation |
45 |
8. |
Interest |
53 |
9. |
Interest Periods |
54 |
10. |
Changes to the Calculation of Interest |
54 |
11. |
Fees |
56 |
12. |
Tax Gross Up and Indemnities |
56 |
13. |
Increased Costs |
65 |
14. |
Other Indemnities |
67 |
15. |
Mitigation by the Lenders |
69 |
16. |
Guarantee and Indemnity |
70 |
17. |
Costs and Expenses |
73 |
18. |
Representations |
74 |
19. |
Information Undertakings |
80 |
20. |
Financial Covenants |
83 |
21. |
Stamping |
86 |
22. |
General Undertakings |
86 |
23. |
Events of Default |
94 |
24. |
Security |
99 |
25. |
Changes to the Lenders |
102 |
26. |
Restriction on Debt Purchase Transactions |
108 |
27. |
Changes to the Obligors |
109 |
28. |
Role of the Administrative Parties |
110 |
29. |
Application of Proceeds |
125 |
30. |
Conduct of Business by the Finance Parties |
126 |
31. |
Sharing among the Finance Parties |
126 |
32. |
Payment Mechanics |
128 |
33. |
Set-Off |
131 |
34. |
Notices |
131 |
35. |
Calculations and Certificates |
134 |
(i)
36. |
Partial Invalidity |
134 |
37. |
Remedies and Waivers |
134 |
38. |
Amendments and Waivers |
134 |
39. |
Confidential Information |
140 |
40. |
Confidentiality of Funding Rates |
143 |
41. |
Counterparts |
144 |
42. |
Governing Law |
145 |
43. |
Enforcement |
145 |
44. |
Acknowledgement Regarding any Supported QFCS |
146 |
45. |
Contractual Recognition of Bail-In |
147 |
Schedule 1 |
The Parties |
148 |
Part 1 |
The Original Lenders |
148 |
Part 2 |
The Original Facility Guarantors |
149 |
Part 3 |
Form of QPP Certificate |
150 |
Schedule 2 |
Conditions Precedent |
151 |
Part 1 |
Conditions Precedent to Initial Utilisation |
151 |
Part 2 |
Conditions Precedent Required to be Delivered by an Additional Guarantor |
153 |
Schedule 3 |
Requests and Notice |
155 |
Part 1 |
Form of Utilisation Request |
155 |
Part 2 |
Selection Notice |
156 |
Schedule 4 |
Form of Transfer Certificate |
157 |
Schedule 5 |
Form of Assignment Agreement |
161 |
Schedule 6 |
Form of Compliance Certificate |
165 |
Schedule 7 |
Form of Increase Confirmation |
166 |
Schedule 8 |
Form of Accession Letter |
170 |
Schedule 9 |
Form of Resignation Letter |
171 |
Schedule 10 |
Forms of Notifiable Debt Purchase Transaction Notice |
173 |
Part 1 |
Form of Notice on Entering into Notifiable Debt Purchase Transaction |
173 |
Part 2 |
Form of Notice on Termination of Notifiable Debt Purchase Transaction/Notifiable Debt Purchase Transaction Ceasing to be with Sponsor Affiliate |
174 |
Schedule 11 |
Existing Security |
175 |
Schedule 12 |
Existing Guarantees |
178 |
Schedule 13 |
Timetables |
180 |
Schedule 14 |
Existing Material Subsidiary Debt Facilities |
181 |
Schedule 15 |
Acceptable Banks |
182 |
(ii)
This Facility Agreement dated 8 March 2024.
Between:
(1) |
IHS Holding Limited, an exempted company registered by way of continuation in the Cayman Islands with limited liability and having its registered office at 190 Elgin Avenue, George Town, Grand Cayman, KY1-9008, Cayman Islands under the registration number 382000 (the “Company”); |
(2) |
Standard Chartered Bank as arranger (in this capacity, the “Arranger”); |
(3) |
The Financial Institutions listed in Part 1 of Schedule 1 (The Parties) as original lenders (in this capacity, the “Original Lenders”); |
(4) |
Each Entity listed in Part 2 of Schedule 1 (The Original Facility Guarantors) as the original facility guarantors (the “Original Facility Guarantors”); and |
(5) |
Standard Chartered Bank as facility agent (in this capacity, the “Facility Agent”). |
It is agreed as follows:
1. |
Definitions and Interpretation |
1.1 |
Definitions |
In this Agreement:
“Acceptable Bank” means:
(a) |
a bank or financial institution which has a long term unsecured credit rating of at least BBB by Standard & Poor’s Rating Services or Fitch Ratings Ltd or at least Baa2 by Moody’s Investors Service Limited or a comparable rating from an internationally recognised credit rating agency; |
(b) |
each bank or financial institution as set out in Schedule 15 (Acceptable Banks); |
(c) |
the Lenders and/or their Affiliates (other than (i) any Lender or Affiliate of a Lender that is a Sponsor Affiliate and (ii) any Lender that notifies the Facility Agent and the Company that it may not act as an Acceptable Bank); |
(d) |
each bank or financial institution (other than any Sponsor Affiliate) that is a lender under any debt facility provided to any member of the Group; |
(e) |
each bank or financial institution (other than any Sponsor Affiliate) that either (i) becomes a lender under a debt financing to be provided to a Subsidiary of the Company to fund a Permitted Acquisition or (ii) is providing banking facilities to a Subsidiary of the Company acquired by way of a Permitted Acquisition, in each case for a period of 12 months following the closing date of the relevant Permitted Acquisition; or |
(f) |
any other bank or financial institution approved by the Facility Agent (acting on the instructions of all the Lenders) from time to time. |
“Accession Letter” means a document substantially in the form set out in Schedule 8 (Form of Accession Letter), with any amendments the Facility Agent and the Company may agree.
“Accounting Reference Date” means 31 December or such other date agreed in accordance with this Agreement.
“Additional Guarantor” means a company which becomes an Additional Guarantor in accordance with Clause 27.2 (Additional Guarantors).
“Administrative Party” means the Arranger or an Agent.
“Affiliate” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.
“Agent” means the Facility Agent or the Security Agent.
“Annual Financial Statements” has the meaning given to that term in Clause 19.1 (Financial Statements).
“Anti-Corruption Laws” means all laws, rules and regulations from time to time concerning or relating to bribery or corruption, including but not limited to the UK Bribery Act 2010, the US Foreign Corrupt Practices Act (as amended) and all other anti-bribery and corruption laws, in each case applicable to the Company or its Subsidiaries.
“Article 55 BRRD” means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
“Assignment Agreement” means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee.
“Auditors” means any firm appointed by the Company to act as its statutory auditors.
“Authorisation” means an authorisation, consent, approval, resolution, permit, licence, exemption, filing, notarisation or registration.
“Availability Period” means the period from and including the Signing Date to and including the date falling one month from the date of this Agreement.
“Available Commitment” means a Lender’s Commitment minus:
(a) |
the amount of its participation in any outstanding Loans; and |
(b) |
in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date. |
“Available Facility” means the aggregate for the time being of each Lender’s Available Commitment.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers.
“Bail-In Legislation” means:
(a) |
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; |
(b) |
in relation to the United Kingdom, the UK Bail-In Legislation; and |
(c) |
in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-Down and Conversion Powers contained in that law or regulation. |
“Blocking Law” means:
(a) |
Council Regulation (EC) No 2271/1996 of 22 November 1996 or the EU Blocking Regulation and Commission Implementing Regulation (EU) 2018/1101 and/or any |
2
applicable national law or regulation relating to or implementing such Regulation in any member state of the European Union or the United Kingdom; and
(b) |
any similar and applicable anti-boycott law or regulation issued by a Sanctions Authority. |
“Bond Obligor” means an Original Bond Obligor or a Subsequent Bond Obligor.
“Break Costs” means the amount (if any) by which:
(a) |
the interest (excluding Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period; |
exceeds:
(b) |
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period. |
“Bridge Facility” means any bridge financing on customary market terms and for the sole purpose of funding a Permitted Acquisition, with a tenor not exceeding 24 months and that is repaid or refinanced within 24 months of incurrence.
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in Amsterdam, Lagos, London, Singapore and the Cayman Islands and;
(a) |
(in relation to any date for payment or purchase of USD), New York; and |
(b) |
(in relation to the fixing of an interest rate) which is a US Government Securities Business Day. |
“Cash” means, at any time, any cash-in-hand and any credit balance on any deposit, savings, current or other account to which, in each case, a member of the Group (and only that member of the Group or other members of the Group) is beneficially entitled and for so long as that cash is:
(a) |
except for a maximum aggregate amount for the Group of USD 20,000,000 (twenty million dollars) or its equivalent, held with an Acceptable Bank; |
(b) |
available to be freely withdrawn within 90 days; |
(c) |
not subject to any Security, other than: |
(i) |
the Security created under the Security Documents; |
(ii) |
charges arising solely by operation of law; |
(iii) |
rights of set-off or netting or charges or pledge rights arising by operation of law or by contract by virtue of the provision to that member of the Group of clearing bank or similar facilities or overdraft facilities and arising under the standard commercial terms and conditions of such bank; |
(iv) |
encumbrances over credit balances on bank accounts to facilitate operation of such bank accounts on a cash-pooled net balance basis and arising under that account bank’s standard terms in the ordinary course of trading or business activities of that member of the Group; or |
3
(v) |
Security in respect of Financial Indebtedness to the extent such Financial Indebtedness is included for the purposes of calculating Net Cash Finance Interest Adjusted for Leases or Net Financial Indebtedness; and |
(d) |
capable of being applied or made available for application in repayment or prepayment of the Facility or any other Financial Indebtedness included within the calculation of Net Cash Finance Interest Adjusted For Leases or Net Financial Indebtedness, within the next 180 days, |
and, for the avoidance of doubt, not including any cash affected by any process referred to in Clause 23.10 (Creditors’ Process or Expropriation).
“Cash Equivalent Investments” means at any time:
(a) |
certificates of deposit maturing within one year after the relevant date of calculation and issued by an Acceptable Bank; |
(b) |
any investment in marketable debt obligations issued or guaranteed by the government of any country in which any member of the Group is located or by any government of any other country which has a rating for its short-term unsecured and non credit-enhanced debt obligations of A-1 or higher by Standard & Poor’s Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody’s Investors Service Limited or by an instrumentality or agency of any such government having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security; |
(c) |
commercial paper not convertible or exchangeable to any other security: |
(i) |
for which a recognised trading market exists; |
(ii) |
issued by an issuer incorporated in a country, the government of which has a rating for its short-term unsecured and non credit-enhanced debt obligations of A-1 or higher by Standard & Poor’s Rating Services or P-1 or higher by Moody’s Investors Service Limited or by an instrumentality or agency of any such government having an equivalent credit rating; |
(iii) |
which matures within one year after the relevant date of calculation; and |
(iv) |
which has a credit rating of either A-1 or higher by Standard & Poor’s Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody’s Investors Service Limited, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its short-term unsecured and non-credit enhanced debt obligations, an equivalent rating; |
(d) |
bills of exchange issued in Nigeria, the Cayman Islands, the United States of America or any state thereof, the United Kingdom, Switzerland, any member state of the European Economic Area or any Participating Member State or any country in which any member of the Group is located eligible for rediscount at the relevant central bank and accepted by an Acceptable Bank (or their dematerialised equivalent); |
(e) |
any investment in money market funds which (i) have a credit rating of either A-1 or higher by Standard & Poor’s Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody’s Investors Service Limited, (ii) invest substantially all their assets in securities of the types described in paragraphs (a) to (d) above and (iii) can be turned into cash on not more than 90 days’ notice; or |
(f) |
any other debt security approved by the Majority Lenders, |
4
in each case to which a member of the Group (and only that member of the Group or other members of the Group) is beneficially entitled at that time and which is not issued or guaranteed by a member of the Group or subject to any Security other than:
(i) |
Security created under the Security Documents; |
(ii) |
charges arising solely by operation of law in the ordinary course of trading or business activities of any member of the Group; or |
(iii) |
Security in respect of Financial Indebtedness to the extent such Financial Indebtedness is included for the purposes of calculating Net Financial Indebtedness. |
“Code” means the US Internal Revenue Code of 1986.
“Commitment” means:
(a) |
in relation to an Original Lender, the amount set opposite its name in Part 1 of Schedule 1 (The Parties) under the heading Commitment and the amount of any other Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and |
(b) |
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase), |
to the extent not cancelled, reduced or transferred by it under this Agreement.
“Company Shareholder Loan” means each loan to the Company by any of the Company’s direct or indirect shareholders or any of their Affiliates which is subordinated to the claims of the Finance Parties under this Agreement pursuant to the Subordination Agreement or otherwise on terms satisfactory to the Majority Lenders.
“Compliance Certificate” means a certificate substantially in the form set out in Schedule 6 (Form of Compliance Certificate), with any amendments the Facility Agent and the Company may agree.
“Confidential Information” means all information relating to the Company, the Group, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:
(a) |
any member of the Group or any of its advisers; or |
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers, |
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:
(i) |
information that: |
(A) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 39 (Confidential Information); |
(B) |
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or |
5
(C) |
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and |
(ii) |
any Funding Rate. |
“Confidentiality Undertaking” means, at any time, a confidentiality undertaking substantially in the then current recommended form of the Loan Market Association or in any other form agreed between the Company and the Facility Agent.
“CTA” means the Corporation Tax Act 2009.
“Debt Purchase Transaction” means, in relation to a person, a transaction where such person:
(a) |
purchases by way of assignment or transfer; |
(b) |
enters into any sub-participation in respect of; or |
(c) |
enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of, |
any Commitment or amount outstanding under this Agreement.
“Default” means:
(a) |
an Event of Default; or |
(b) |
an event or circumstance specified in Clause 23 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of them) be an Event of Default. |
“Defaulting Lender” means any Lender:
(a) |
which has failed to make its participation in a Loan available or has notified the Facility Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders’ Participation); |
(b) |
which has otherwise rescinded or repudiated a Finance Document; or |
(c) |
with respect to which an Insolvency Event has occurred and is continuing, |
unless, in the case of paragraph (a) above:
(i) |
its failure to pay is caused by: |
(A) |
administrative or technical error; or |
(B) |
a Disruption Event; and |
(ii) |
payment is made within three Business Days of its due date; or |
(iii) |
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question. |
“Delegate” means any delegate, agent, attorney, co-trustee or co-agent appointed by the Security Agent or any Receiver.
6
“Disruption Event” means either or both of:
(a) |
a material disruption to the payment or communications systems or to the financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out), provided that the disruption is not caused by, and is beyond the control of, any of the Parties; or |
(b) |
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party: |
(i) |
from performing its payment obligations under the Finance Documents; or |
(ii) |
from communicating with other Parties in accordance with the terms of the Finance Documents, |
and which (in either case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
“Dutch Civil Code” means the Burgerlijk Wetboek of the Netherlands.
“EBITDA” has the meaning given to it in Clause 20.1 (Financial Definitions).
“EEA Member Country” means any member state of the European Union, Iceland, Liechtenstein and Norway.
“Environmental Claim” means any claim, proceeding, formal notice or investigation by any person in respect of the Performance Standards.
“Equity Offering” means a public offering or a private placement of the ordinary shares or common equity of the Company or Holding Company of the Company.
“EU Bail-In Legislation Schedule” means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
“Event of Default” means any event or circumstance specified as such in Clause 23 (Events of Default).
“Existing Material Subsidiary Debt Facility” means:
(a) |
any debt facility provided by any person that is not a member of the Group to any Material Subsidiary on arm’s length terms (excluding any loan made by any direct or indirect shareholder of the Company (in its capacity as such) or any overdraft facility), that is in existence as at the date of this Agreement, as set out in Schedule 14 (Existing Material Subsidiary Debt Facilities); or |
(b) |
any debt facility that refinances any of the debt facilities referred to in paragraph (a) above (other than any loan made by any direct or indirect shareholder of the Company (in its capacity as such) or any overdraft facility) and whose terms are in compliance with the terms of this Agreement, but excluding (for the avoidance of doubt) the Senior Notes; or |
(c) |
the Nigeria Group Credit Facility. |
“Facility” means the term credit facility made available under this Agreement as described in Clause 2 (The Facility).
“Facility Guarantor” means the Original Facility Guarantors and each Additional Guarantor that is not incorporated in Nigeria.
7
“Facility Office” means the office or offices notified by a Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.
“Fallback Interest Period” means one month.
“FATCA” means:
(a) |
sections 1471 to 1474 of the Code or any associated regulations; |
(b) |
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or |
(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction. |
“FATCA Application Date” means:
(a) |
in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or |
(b) |
in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA. |
“FATCA Deduction” means a deduction or withholding from a payment under a Finance Document required by FATCA.
“FATCA Exempt Party” means a Party that is entitled to receive payments free from any FATCA Deduction.
“Fee Letter” means any letter entered into by reference to this Agreement between one or more Administrative Parties and the Company setting out the amount of any fees referred to in this Agreement.
“Finance Document” means:
(a) |
this Agreement; |
(b) |
each Security Document; |
(c) |
the Nigeria Guarantee; |
(d) |
each Fee Letter; |
(e) |
the Subordination Agreement; |
(f) |
the Takeout Financing Side Letter; |
(g) |
each Compliance Certificate; |
(h) |
each Utilisation Request; |
(i) |
each Increase Confirmation; |
(j) |
each Accession Letter; |
8
(k) |
each Resignation Letter; |
(l) |
each Selection Notice; |
(m) |
any other subordination agreement entered into in respect of any Permitted Financial Indebtedness; or |
(n) |
any other document designated as such by the Facility Agent and the Company. |
“Finance Party” means a Lender or an Administrative Party.
“Financial Indebtedness” means, with respect to any person (without double counting):
(a) |
any indebtedness of such person for borrowed money; |
(b) |
the outstanding principal amount of any bonds, debentures, notes, loan stock, commercial paper, acceptance credits, bills or promissory notes drawn, accepted, endorsed or issued by such person (but not Trade Instruments); |
(c) |
any indebtedness of such person for the deferred purchase price of assets or services (except trade accounts incurred and payable in the ordinary course of trading or business activities to trade creditors that are treated as current payable in the Financial Statements within 365 days of the date they are incurred); |
(d) |
non-contingent obligations of such person to reimburse any other person for amounts paid by that person under a letter of credit or similar instrument (excluding any letter of credit or similar instrument issued for the account of such person with respect to trade accounts incurred and payable in the ordinary course of trading or business activities to trade creditors that are treated as current payable in the Financial Statements within 365 days of the date they are incurred); |
(e) |
the amount of any obligation of such person in respect of any Lease; |
(f) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) will be taken into account); |
(g) |
amounts raised by such person under any other transaction having the financial effect of a borrowing and which would be classified as a borrowing under IFRS; |
(h) |
all indebtedness of the types described in the foregoing items secured by a lien on any property or assets owned by such person, whether or not such indebtedness has been assumed by such person; |
(i) |
any amount raised by the issue of shares which are redeemable (other than at the option of the issuer) before the Termination Date or are otherwise classified as borrowings under IFRS; |
(j) |
any repurchase obligation or liability of such person with respect to accounts or notes receivable sold by such person, any liability of such person under any sale and leaseback transactions that do not create a liability on the balance sheet of such person, any obligation under a “synthetic lease” or any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such person; and |
9
(k) |
the amount of any obligation in respect of any guarantee or indemnity given by such person for any of the foregoing items incurred by any other person (notwithstanding any treatment under IFRS to the contrary). |
if and to the extent such relevant item (other than letters of credit) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of the relevant person, prepared in accordance with IFRS and provided that “Financial Indebtedness” shall not include indebtedness owed solely to other Group members and shall not include indebtedness arising under any Shareholder Loan.
“Financial Model” means the financial model prepared by the Company, as updated from time to time.
“Financial Quarter” means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.
“Financial Statements” means Annual Financial Statements and Quarterly Financial Statements.
“Financial Year” means the annual accounting period of the Company ending on the Accounting Reference Date in each year.
“Funding Rate” means any individual rate notified by a Lender to the Facility Agent pursuant to paragraph (a)(ii) of Clause 10.3 (Cost of Funds).
“Group” means the Company and its Subsidiaries for the time being.
“Group Structure Chart” means the group structure chart provided to the Facility Agent pursuant to Clause 4.1 (Initial Conditions Precedent) prior to the date of this Agreement.
“Guarantor” means:
(a) |
the Original Facility Guarantors; |
(b) |
the Original Nigeria Guarantors; and |
(c) |
each Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 27 (Changes to the Obligors). |
“Guarantor Accession Date” means, in relation to any Subsequent Bond Obligor or member of the Nigeria Group, the date on which that Subsequent Bond Obligor or member of the Nigeria Group becomes an Additional Guarantor pursuant to Clause 22.24 (Conditions Subsequent).
“Historic Term SOFR” means, in relation to any Loan, the most recent applicable Term SOFR for a period equal in length to the Interest Period of that Loan and which is as of a day which is no more than two days before the Quotation Day.
“Holdco” means IHS Netherlands Holdco B.V.
“Holding Company” means, in relation to a person, any other person in respect of which it is a Subsidiary.
“IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
10
“IHS Holding USD Term Facility” means the USD 600,000,000 term credit facility agreement dated 28 October 2022 between, amongst others, the Company and Citibank N.A., London Branch as facility agent.
“Impaired Agent” means the Facility Agent at any time when:
(a) |
it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment; |
(b) |
the Facility Agent otherwise rescinds or repudiates a Finance Document; |
(c) |
(if the Facility Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of Defaulting Lender; or |
(d) |
an Insolvency Event has occurred and is continuing with respect to the Facility Agent, |
unless, in the case of paragraph (a) above:
(i) |
its failure to pay is caused by: |
(A) |
administrative or technical error; or |
(B) |
a Disruption Event; and |
payment is made within three Business Days of its due date; or
(ii) |
the Facility Agent is disputing in good faith whether it is contractually obliged to make the payment in question. |
“Increase Confirmation” means a confirmation substantially in the form set out in Schedule 7 (Form of Increase Confirmation).
“Increase Lender” has the meaning given to it in Clause 2.2 (Increase).
“Increased Costs” has the meaning given to it in Clause 13.1 (Definitions).
“Insolvency Event” in relation to an entity means that the entity:
(a) |
is dissolved (other than pursuant to a consolidation, amalgamation or merger); |
(b) |
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; |
(c) |
makes a general assignment, arrangement or composition with or for the benefit of its creditors; |
(d) |
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official; |
(e) |
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, |
11
such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:
(i) |
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or |
(ii) |
is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof; |
(f) |
has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009; |
(g) |
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); |
(h) |
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above); |
(i) |
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; |
(j) |
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or |
(k) |
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts. |
“Interest Period” means each period determined under this Agreement by reference to which interest on a Loan or an Unpaid Sum is calculated.
“ITNG” means IHS Towers NG Limited (formerly known as Helios Towers Nigeria Limited), a company incorporated under the laws of Nigeria, with registration number 448308, and having its registered office at 9 Alfred Rewane Road, Ikoyi, Lagos.
“Joint Venture” means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture, partnership or any other entity.
“Lease” means any lease which would, in accordance with IFRS, be treated as a lease liability.
“Legal Opinion” means any legal opinion delivered to the Facility Agent under Clause 4.1 (Initial conditions precedent) or Clause 27 (Changes to the Obligors).
“Legal Reservations” means:
(a) |
the principle that certain remedies may be granted or refused at the discretion of the court, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors and secured creditors; |
12
(b) |
the time barring of claims under applicable limitation laws (including the Limitation Acts) and defences of acquiescence, set-off or counterclaim and the possibility that an undertaking to assume liability for or to indemnify a person against non-payment of stamp duty may be void; |
(c) |
the principle that in certain circumstances Security granted by way of fixed charge may be recharacterised as a floating charge or that Security purported to be constituted as an assignment may be recharacterised as a charge; |
(d) |
the principle that the creation or purported creation of Security over any contract or agreement which is subject to a prohibition on transfer, assignment or charging may be void, ineffective or invalid and may give rise to a breach of the contract or agreement over which Security has purportedly been created; |
(e) |
the principle that additional interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void; |
(f) |
similar principles, rights and defences under the laws of any relevant jurisdiction; and |
(g) |
any other matters which are set out as qualifications or reservations (however described) as to matters of law in any Legal Opinion. |
“Lender” means:
(a) |
an Original Lender; or |
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with Clause 2.2 (Increase) or Clause 25 (Changes to the Lenders), |
which, in each case, has not ceased to be a Lender in accordance with the terms of this Agreement.
“Limitation Acts” means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.
“Loan” means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan.
“Majority Lenders” means, at any time, a Lender or Lenders:
(a) |
whose participation in the outstanding Loans and whose Available Commitments then aggregate 66⅔% or more of the aggregate of all the outstanding Loans and the Available Commitments of all the Lenders; |
(b) |
if there is no Loan then outstanding, whose Commitments then aggregate 66⅔% or more of the Total Commitments; or |
(c) |
if there is no Loan then outstanding and the Total Commitments have been reduced to zero, whose Commitments aggregated 66⅔% or more of the Total Commitments immediately before the reduction. |
“Margin” means, in relation to any Loan, for each period set out in the table below, the percentage rate per annum set out opposite that period in the table below:
Relevant period for Margin calculation |
Margin (% per annum) |
From and including the Signing Date to and including the date falling 12 Months after the |
4.50% |
13
Signing Date (the “First Margin Step-up Date”) |
|
From but excluding the date falling 12 Months after the Signing Date to and including the date falling 15 Months from the Signing Date (the “Second Margin Step-up Date”) |
6.00% |
From but excluding the date falling 15 Months after the Signing Date to and including the date falling 18 Months from the Signing Date (the “Third Margin Step-up Date”) |
6.25% |
From but excluding the date falling 18 Months after the Signing Date to and including the date falling 21 Months from the Signing Date (the “Fourth Margin Step-up Date”) |
6.50% |
From but excluding the date falling 21 Months after the Signing Date to and including the Termination Date (the “Fifth Margin Step-up Date”) |
7.00% |
“Margin Step-up Date” means each of the First Margin Step-up Date, the Second Margin Step-up Date, the Third Margin Step-up Date, the Fourth Margin Step-up Date and the Fifth Margin Step-up Date (in each case as defined in the definition of “Margin”).
“Market Capitalisation” means an amount equal to (i) the total number of issued and outstanding shares of common stock or common equity interests of a relevant issuer of an “Equity Offering” (as defined in the Sierra Senior Notes Indenture) on the date of the declaration of the relevant dividend multiplied by (ii) the arithmetic mean of the closing prices per share of such common stock or common equity interests for the 30 consecutive trading days immediately preceding the date of declaration of such dividend.
“Market Disruption Rate” means the percentage rate per annum which is the Reference Rate.
“Material Adverse Effect” means a material adverse effect on:
(a) |
the business, operations, assets or financial condition of (i) the Company or (ii) the Group taken as a whole; |
(b) |
the ability of the Obligors (taken as a whole) to perform their payment obligations under the Finance Documents or the ability of the Company to comply with its obligations under Clause 20.2 (Financial Condition) (and, for the purposes of determining the ability of the Company to comply with its obligations under Clause 20.2 (Financial Condition) taking into account any contractual commitment of any Affiliate of the Company (other than a member of the Group) to provide an Additional Investment under Clause 20.4 (Equity Cure)); or |
(c) |
subject to the Legal Reservations and Perfection Requirements, the validity or enforceability of, or the effectiveness or ranking of any Security granted or purported to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents. |
14
“Material Subsidiary” means a Subsidiary of the Company the gross assets, earnings before interest, tax, depreciation and amortisation (calculated on the same basis as EBITDA) or turnover of which accounts for at least 5% of the gross assets, EBITDA or turnover of the Group (the “Material Subsidiary Test”), provided that:
(i) |
subject to paragraph (ix) below, the contribution of a Subsidiary of the Company will be determined from its financial statements which were consolidated into the latest audited consolidated financial statements of the Company; |
(ii) |
the financial condition of the Group will be determined from the latest audited consolidated financial statements of the Company; |
(iii) |
if a Subsidiary of the Company becomes a member of the Group after the date on which the latest audited consolidated financial statements of the Company were prepared: |
(A) |
the contribution of that Subsidiary will be determined from its latest financial statements; and |
(B) |
the financial condition of the Group will be determined from the latest audited consolidated financial statements of the Company but adjusted to take into account any subsequent acquisition or disposal of a business or a company (including that Subsidiary); |
(iv) |
subject to paragraph (ix) below, the contribution of a Subsidiary will, if it has Subsidiaries, be determined from its consolidated financial statements; |
(v) |
if a Material Subsidiary disposes of all or substantially all of its assets to another member of the Group, it will immediately cease to be a Material Subsidiary and the other member of the Group (if it is not the Company or already a Material Subsidiary) will immediately become a Material Subsidiary; |
(vi) |
if a Material Subsidiary disposes of all or a material part of its assets to a person that is not a member of the Group, the Material Subsidiaries will be determined based on the most recent financial statements referred to in paragraphs (i) and (ii) (or, if applicable paragraph (iii)) above with a pro forma adjustment applied to take account of such disposal; |
(vii) |
a Subsidiary of the Company (if it is not already a Material Subsidiary) will become a Material Subsidiary on completion of any other intra-Group transfer or reorganisation if it would have been a Material Subsidiary had the intra-Group transfer or reorganisation occurred on the date of the latest audited consolidated financial statements of the Company; |
(viii) |
except as specifically mentioned in paragraph (v) above, a member of the Group will remain a Material Subsidiary until the next audited consolidated financial statements of the Company delivered to the Facility Agent pursuant to paragraph (a) of Clause 19.1 (Financial Statements) show otherwise; |
(ix) |
any Subsidiary of the Company (a “Relevant Subsidiary”) that is itself a Holding Company and which has no operations and does not undertake or carry on any business other than the ownership of shares in a Subsidiary or activities consequential on, or incidental to, its role as a Holding Company, will not be a Material Subsidiary, unless: |
(A) |
such Relevant Subsidiary is a borrower of Financial Indebtedness in excess of USD 10,000,000 (or the equivalent in any other currency) which is provided by a creditor that is not a member of the Group; and |
(B) |
the Material Subsidiary Test is met in relation to it, |
15
provided further that any Relevant Subsidiary that is not a Material Subsidiary solely as a result of the application of this paragraph (ix) will be deemed to be a “Material Subsidiary” for the purposes of Clause 22.9 (Negative Pledge), Clause 22.10 (Disposals) and Clause 22.19 (Loans or Credit); and
(x) |
any Subsidiary of the Company incorporated in Rwanda or Zambia shall not, at any time, constitute a Material Subsidiary unless, after the date of this Agreement: |
(A) |
a Material Subsidiary or other Subsidiary of the Company (other than a Subsidiary of the Company that is incorporated in Rwanda or Zambia as at the date of this Agreement) transfers sufficient assets, business or undertakings to the relevant Subsidiary incorporated in Zambia or Rwanda (as applicable) and that Subsidiary satisfies the Material Subsidiary Test; or |
(B) |
the relevant Subsidiary of the Company incorporated in Rwanda or Zambia ceases to operate all or substantially all of its business, or all or substantially all of its assets and undertaking cease to be situated, in each case within its jurisdiction of incorporation (where such business, assets or undertaking is instead located in a different jurisdiction). |
If there is a dispute as to whether or not a member of the Group is a Material Subsidiary, a certificate of the Auditors is, in the absence of manifest error, conclusive.
“Material Subsidiary Event of Default” means:
(a) |
an event of default (however defined or described) under any document evidencing Financial Indebtedness of an Original Material Subsidiary or a Material Subsidiary where the aggregate principal amount outstanding of that Financial Indebtedness is equal to or more than USD 75,000,000 (or the equivalent in any other currency); |
(b) |
an Event of Default that would arise under Clause 23.5 (Misrepresentation) in respect of paragraph (c) of Clause 18.2 (Status) if the references in that Clause 23.5 (Misrepresentation) to an Obligor were references to a Material Subsidiary; or |
(c) |
an Event of Default that would arise under Clause 23.8 (Insolvency) to Clause 23.11 (Cessation of Business) (inclusive), Clause 23.15 (Failure to Comply with Court Judgment) and Clause 23.16 (Litigation) if, in each case, the references in such Clauses to the Company (or, as applicable, an Obligor) were references to a Material Subsidiary (other than a Guarantor) provided that: |
(i) |
(insofar as such Clause refers to a Material Subsidiary by virtue of this paragraph) the reference in Clause 23.15 (Failure to Comply with Court Judgment) to “having a value of at least USD 75,000,000 (or its equivalent in any other currency)” shall be deemed instead to be a reference to “which has or would be reasonably likely to have a Material Adverse Effect”; and |
(ii) |
where the term Permitted Reorganisation is used in such Clauses, the references in the definition of Permitted Reorganisation to the Company shall be deemed to include references to a Material Subsidiary (other than a Guarantor), shall be subject to the condition that the relevant Permitted Reorganisation would not result in, or be reasonably likely to result in, the occurrence of a Material Subsidiary Event of Default. |
“Money Laundering Laws” means money laundering laws, rules and regulations from time to time, in each case applicable to the Company or its Subsidiaries.
16
“Month” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
(a) |
(subject to paragraph (c) (below)) if the numerically corresponding day is not a Business Day, that period will end on the next Business Day in the calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; |
(b) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period will end on the last Business Day in that calendar month; |
(c) |
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period will end on the last Business Day in the calendar month in which that Interest Period is to end. |
The rules above will only apply to the last Month of any period.
“New Lender” has the meaning given to it in Clause 25 (Changes to the Lenders).
“New Shareholder Injections” means the net cash proceeds received by the Company after the first Utilisation Date from any of the Company’s direct or indirect shareholders from any subscription by that shareholder in cash for shares of the Company or capital contribution to the Company that does not result in the occurrence of a Change of Control.
“Nigeria” means the Federal Republic of Nigeria.
“Nigeria Guarantee” means the English law governed guarantee agreement dated on or around the date of this Agreement, between each Original Nigeria Guarantor each as an original Nigeria guarantor, the Company and the Facility Agent.
“Nigeria Guarantor” means:
(a) |
each Original Nigeria Guarantor; and |
(b) |
each other member of the Nigeria Group that is incorporated in Nigeria and which is an Additional Guarantor. |
“Nigeria Group” means IHS Netherlands Holdco B.V. and its Subsidiaries from time to time.
“Nigeria Group Credit Facility” means the:
(a) |
up to NGN 165,000,000,000 term credit facility agreement dated on 3 January 2023 between, amongst others, each of IHS (Nigeria) Limited, INT Towers Limited and ITNG as borrowers, Ecobank Nigeria Limited as agent and each of the financial institutions named therein as original lenders, as amended from time to time; and |
(b) |
up to NGN 55,000,000,000 revolving credit facility agreement dated on 3 January 2023 between, amongst others, each of IHS (Nigeria) Limited, INT Towers Limited and ITNG as borrowers, Ecobank Nigeria Limited as agent and each of the financial institutions named therein as original lenders, as amended from time to time. |
“Nigeria Obligor” means each Obligor incorporated in Nigeria.
“Nigeria Shareholder Loan” means any loan made by the Company, IHS Netherlands (Interco) Coöperatief U.A. or an Affiliate of the Company (other than any member of the Nigeria Group) to any of IHS (Nigeria) Limited, IHS Towers NG Limited, INT Towers Limited or Holdco which is subordinated to the claims of the Finance Parties under this Agreement pursuant to the Subordination Agreement or otherwise on terms satisfactory to the Majority Lenders.
17
“Non-Consenting Lender” means any Lender who does not and continues not to consent or agree to a waiver or amendment where:
(a) |
the Company or the Facility Agent (at the request of the Company) has requested the Lenders to give a consent in relation to, or to agree to a waiver or amendment of, any provisions of the Finance Documents; |
(b) |
the consent, waiver or amendment in question requires the approval of all the Lenders; and |
(c) |
the Majority Lenders have consented or agreed to such waiver or amendment. |
“Notifiable Debt Purchase Transaction” has the meaning given to that term in paragraph (b) of Clause 26.2 (Disenfranchisement on Debt Purchase Transactions Entered into by Affiliates).
“Obligor” means the Company and each Guarantor.
“Obligors’ Agent” means the Company, appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.4 (Obligors’ Agent).
“Original Bond Obligor” means a member of the Group that issues the Senior Notes or is a guarantor of the Senior Notes as at the date of issuance of the Senior Notes.
“Original Financial Statements” means the audited consolidated financial statements of the Company and its Subsidiaries for its financial year ended 31 December 2022.
“Original Material Subsidiary” means each of IHS (Nigeria) Limited, INT Towers Limited, ITNG, IHS Cameroon S.A., IHS Côte d’Ivoire S.A., IHS Towers South Africa Proprietary Limited, IHS Brasil – Cessão de Infraestruturas S.A. and I-Systems Soluções de Infraestrutura S.A..
“Original Nigeria Guarantor” means each of IHS Towers NG Limited, IHS (Nigeria) Limited and INT Towers Limited.
“Original Obligor” means the Company, each Original Facility Guarantor and each Original Nigeria Guarantor.
“Participating Member State” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“Party” means a party to this Agreement.
“Perfection Requirements” means the making or the procuring of the necessary registrations, acknowledgements of registration, filing, endorsements, notations in stock registries (accompanied by any necessary certifications), notarisation, stampings and/or notifications of the Security Documents and/or the Security created thereunder in each case necessary for the perfection, priority, validity, enforceability and admissibility of the Security created under the Security Documents.
“Performance Standards” means the International Finance Corporation (IFC) Performance Standards on Social & Environmental Sustainability, effective 1 January 2012.
“Permitted Acquisition” means any acquisition:
(a) |
pursuant to a Permitted Reorganisation or Permitted Transaction; |
(b) |
to which the Facility Agent (acting on the instructions of the Majority Lenders) has given prior written consent; |
18
(c) |
of assets, a person, of shares, securities or a business or undertaking (or, in each case, any interest in any of them) or the incorporation of a company (or purchase of shares in a shelf company) for the purpose of effecting such acquisition, but only if: |
(i) |
no (A) Default is continuing or (B) mandatory prepayment event under Clause 7.4 (Mandatory Prepayment – Sanctions Etc.) has occurred and either the 15 Business Day period or 20 day notice period referred to in paragraph (c) of Clause 7.4 (Mandatory Prepayment – Sanctions Etc.) has not expired in relation to any Lender, in each case, on the date on which the relevant member of the Group enters into a legal commitment for that acquisition or is incorporated, or is reasonably likely to occur as a result of that acquisition or that legal incorporation; |
(ii) |
without prejudice to Clause 22.4 (Sanctions), the assets the subject of the acquisition are not subject to Sanctions and the assets are not located in, nor does the person the subject of the acquisition carry out any of its business in, a Sanctioned Country at the time of the acquisition; |
(iii) |
subject to Clause 22.24 (Conditions Subsequent); if, upon the acquisition or incorporation of the relevant company it would become a member of the Nigeria Group, the relevant company becomes an Additional Guarantor in accordance with Clause 27.2 (Additional Guarantors); and |
(iv) |
in the case of an acquisition by a member of the Group of a person that would become a Material Subsidiary (or a Holding Company of such person) only, the relevant member of the Group has delivered to the Facility Agent, not later than the date falling 10 Business Days after the date on which the relevant member of the Group enters into a legal commitment for the relevant acquisition, an updated Financial Model assuming completion of such acquisition on that date, for the period until the Termination Date from the date on which the relevant member of the Group enters into a legal commitment for such proposed acquisition, and the revised Financial Model shows that the Company will not be in breach or default in respect of any of the financial covenants set out in Clause 20 (Financial Covenants) at any time during that period; |
(d) |
made between members of the Group; |
(e) |
pursuant to an issue of shares by a member of the Group (other than a member of the Nigeria Group) to another member of the Group, by a member of the Nigeria Group to another member of the Nigeria Group, or by the Company to the extent not giving rise to a Change of Control; and |
(f) |
comprising the acquisition of securities which are Cash Equivalent Investments. |
“Permitted Disposal” means any sale, lease, transfer or disposal:
(a) |
of assets by the Group in the ordinary course of trading or business activities; |
(b) |
between members of the Group (other than by a member of the Nigeria Group); |
(c) |
between members of the Nigeria Group; |
(d) |
of assets in exchange for other assets comparable or superior as to type, value or quality; |
(e) |
the decommissioning of any towers, including but not limited to in connection with tower consolidation purposes; |
19
(f) |
of obsolete or redundant assets no longer required for the relevant person’s business; |
(g) |
of cash by way of a Permitted Loan; |
(h) |
of cash pursuant to Clause 22.18 (Dividends and Share Redemption) or a Permitted Payment; |
(i) |
of Cash Equivalent Investments for a comparable amount of cash or in exchange for a comparable amount of other Cash Equivalent Investments; |
(j) |
arising as a result of the creation of any Permitted Security or (in the case of any member of the Group which is not an Obligor) the creation of any Security to the extent not prohibited by the terms of the Agreement, a Permitted Reorganisation or a Permitted Transaction; |
(k) |
of cash to the extent not otherwise prohibited by the terms of this Agreement; |
(l) |
constituted by a licence of intellectual property rights; |
(m) |
constituted by a licence or sub-licence in the ordinary course of trading or business activities; |
(n) |
constituted by a lease or licence of real property arising in the ordinary course of trading or business activities of the disposing entity; |
(o) |
any share sale or issuance by the Company, a Guarantor or a Material Subsidiary or share issuance by any member of the Group or arising as a result of such share sale or issuance; |
(p) |
arising as a result of the sale of towers, provided that such towers are replaced by towers with an aggregate fair market value that is equal to or greater than the aggregate fair market value of the towers sold; |
(q) |
of trade receivables earned during a previous accounting period on a non-recourse basis (which may include recourse in respect of warranties and indemnities as to title and validity that are customarily provided in such non-recourse arrangements) and provided that such transaction does not have the commercial effect of a borrowing; |
(r) |
arising as a result of the disposition of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of trading or business activities or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements; |
(s) |
arising as a result of a foreclosure, condemnation or any similar action with respect to any property or other assets or a surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind; |
(t) |
arising as a result of a seizure, expropriation, nationalisation, intervention, restriction or other action by or on behalf of any governmental, regulatory or other authority which in each case does not constitute (i) an Event of Default pursuant to Clause 23.10 (Creditors’ Process or Expropriation) or (ii) a mandatory prepayment event pursuant to Clause 7.3 (Mandatory Prepayment – Material Subsidiary Event of Default); |
(u) |
of treasury shares by any member of the Group that are held following the exercise, in each case on a “cashless” or “net exercise” basis, of any option to purchase corporate stock, shares or membership interests granted to any future, present or former employee, director, officer, contractor or consultant of the Company or any Subsidiary of the Company pursuant to any employee benefit plans or arrangements, including for |
20
the purpose of satisfying any taxes (including estimated taxes) due as a result of the exercise of any such option;
(v) |
by the Group (other than an Obligor or a Material Subsidiary) to the extent not otherwise restricted by the terms of this Agreement; |
(w) |
to a Joint Venture, to the extent permitted by Clause 22.12 (Joint Ventures); and |
(x) |
arising under any single transaction or series of related transactions that involves assets having a fair market value of less than the greater of USD 25,000,000 (or its equivalent in other currencies) and an amount equal to zero point eight per cent. (0.8%) of Total Assets. |
“Permitted Financial Indebtedness” means any Financial Indebtedness:
(a) |
arising under the Finance Documents; |
(b) |
arising under a Nigeria Group Credit Facility; |
(c) |
arising under the IHS Holding USD Term Facility; |
(d) |
arising under the Revolving Credit Facility; |
(e) |
arising under a Senior Notes Indenture; |
(f) |
arising under a Permitted Loan or a Permitted Guarantee; |
(g) |
under any Lease; |
(h) |
comprising of deferred consideration arising in connection with a Permitted Acquisition, provided that: |
(i) |
such deferred consideration shall not exceed 75% of the total consideration (excluding any post-completion adjustments and/or earnouts) for that Permitted Acquisition; |
(ii) |
the deferred consideration is payable in full by no later than the date falling 18 months after the completion date for that Permitted Acquisition; and |
(iii) |
if such deferred consideration is not paid or discharged when due, it shall be either: |
(A) |
automatically converted into an equitable interest in the Company, with the Company having no residual indebtedness or other liability in connection with such deferred consideration following such conversion; or |
(B) |
subordinated to the claims of the Finance Parties under this Agreement on terms satisfactory to the Majority Lenders; |
(i) |
under derivative transactions entered into in connection with protection against or benefit from fluctuation in any interest or currency rates or commodity prices that arise in the ordinary course of trading or business, but not transactions for investment or speculative purposes; |
(j) |
of a member of the Group (other than the Company or any member of the Nigeria Group), provided that such Financial Indebtedness does not exceed the Priority Debt Cap at any time; |
(k) |
arising under any refinancing of any Permitted Financial Indebtedness; |
21
(l) |
arising under any Existing Material Subsidiary Debt Facility; |
(m) |
of any person acquired by the Company or any member of the Group after the date of this Agreement (which is incurred under arrangements in existence at the date of acquisition, but not incurred or increased in contemplate of, or since, that acquisition), provided that such acquisition is a Permitted Acquisition and the Company has delivered to the Facility Agent a Financial Model referred to in paragraph (c) of the definition of Permitted Acquisition; |
(n) |
arising under any letter of credit, banker’s acceptances, overdrafts or daylight borrowing facilities entered into by a member of the Group in the ordinary course of trading or business activities; |
(o) |
any liability arising as a result of a fiscal unity (fiscale eenheid) for Dutch corporate tax or VAT purposes or of any other jurisdiction having similar effect; |
(p) |
any liability in respect of any member of the Group incorporated in The Netherlands arising under a declaration of joint and several liability (hoofdelijke aansprakelijkheid) as referred to in Section 2:403 of the Dutch Civil Code; and |
(q) |
of a member of the Group, which is not permitted by the preceding paragraphs, provided that the Leverage Ratio and Interest Cover Ratio, calculated by reference to the most recent Annual Financial Statements or Quarterly Financial Statements delivered to the Facility Agent in accordance with Clause 19.1 (Financial Statements) and the relevant Compliance Certificate, after giving pro forma effect to the incurrence of such Financial Indebtedness in full and adjusted for the incurrence of other indebtedness since the last Quarter Date and including any other relevant adjustments to take into account the activities of the Group since the last Quarter Date, comply with the covenanted ratios for the immediately following Quarter Date set out in Clause 20.2 (Financial Condition). |
“Permitted Guarantee” means:
(a) |
the endorsement of negotiable instruments in the ordinary course of trading or business activities of any member of the Group; |
(b) |
any guarantee, performance or similar bond guaranteeing performance by any member of the Group under any contract entered into in the ordinary course of trading or business activities of the Group; |
(c) |
any guarantee given by a member of the Group in relation to or comprising of Permitted Financial Indebtedness (other than under paragraph (f) or paragraph (j) of the definition of Permitted Financial Indebtedness); |
(d) |
any guarantee given by a member of the Group (other than by any member of the Nigeria Group) in relation to any Financial Indebtedness incurred under paragraph (l) of the definition of Permitted Financial Indebtedness; |
(e) |
any guarantee given by the Company in favour of a creditor in respect of any Financial Indebtedness of a Subsidiary of the Company, where the aggregate Financial Indebtedness of that Subsidiary does not exceed 1.5 times its equity value (being the sum of that Subsidiary’s paid up capital and the amount of any shareholder loans made available to it, calculated by reference to the pro forma financial statements of that Subsidiary); |
(f) |
any guarantee listed in Schedule 12 (Existing Guarantees), together with any guarantees replacing any of the same where the aggregate liability under the replacement guarantee is not greater than the aggregate liability under the guarantee |
22
being replaced (or to the extent greater, would be permitted under another paragraph of this definition);
(g) |
any guarantee or indemnity given by the Company in connection with an acquisition or disposal transaction which is a Permitted Acquisition or Permitted Disposal which guarantee or indemnity is in customary form and subject to customary limitations; |
(h) |
any indemnity given in the ordinary course of the documentation of an acquisition or disposal transaction which is a Permitted Acquisition or Permitted Disposal which indemnity is in a customary form and subject to customary limitations; |
(i) |
any liability arising as a result of a fiscal unity (fiscale eenheid) for Dutch corporate tax or value added tax purposes or of any other jurisdiction having similar effect; |
(j) |
any liability in respect of any member of the Group incorporated in The Netherlands arising under a declaration of joint and several liability (hoofdelijke aansprakelijkheid) as referred to in Section 2:403 of the Dutch Civil Code; |
(k) |
any guarantee not otherwise permitted given by a member of the Group in respect of any indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness guaranteed by any member of the Group under this paragraph, without double counting) does not at any time exceed the greater of USD 75,000,000 (or its equivalent in other currencies) and 3.0% of the Total Assets, provided that the aggregate principal amount of indebtedness guaranteed by a member of the Nigeria Group under this paragraph shall not at any time (when aggregated with the principal amount of any other indebtedness guaranteed by any other member of the Nigeria Group under this paragraph, without double counting) exceed USD 75,000,000; and |
(l) |
guarantees not otherwise permitted where the aggregate liability of members of the Group under all such guarantees does not exceed USD 10,000,000 (or its equivalent in other currencies) in total at any time. |
“Permitted Joint Venture” means any investments in any Joint Venture, but only if:
(a) |
no: |
(i) |
Default is continuing; or |
(ii) |
mandatory prepayment event under Clause 7.4 (Mandatory Prepayment – Sanctions Etc.) has occurred and either the 15 Business Day period or 20 day notice period referred to in paragraph (c) of Clause 7.4 (Mandatory Prepayment – Sanctions Etc.) has not expired in relation to any Lender, |
in each case, on the date the Company (or, as applicable, member of the Group) enters into a legal commitment to make an investment in the Joint Venture, or is reasonably likely to occur as a result of the Company’s (or, as applicable, member of the Group’s) investment into that Joint Venture;
(b) |
no co-investor, partner or other investor in such Joint Venture is a Restricted Party; |
(c) |
none of the assets owned by, or the subject of, the Joint Venture are located in a Sanctioned Country; and |
(d) |
none of the Joint Venture’s business operations is or will be carried out in any Sanctioned Country and the Joint Venture is not incorporated or established in a Sanctioned Country, |
23
and further provided that, solely in relation to any investment by any member of the Nigeria Group, in any Financial Year the aggregate of:
(i) |
all amounts subscribed for shares in, lent to, or invested in all such Joint Ventures by any member of the Nigeria Group; |
(ii) |
the contingent liabilities of any member of the Nigeria Group under any guarantee given in respect of the liabilities of any such Joint Venture; and |
(iii) |
the market value of any assets transferred by any member of the Nigeria Group to any such Joint Venture, |
does not exceed USD50,000,000 (or its equivalent in other currencies).
“Permitted Loan” means:
(a) |
any trade credit extended by the Company, an Obligor or a Material Subsidiary to its customers on normal commercial terms and in the ordinary course of trading or business activities; |
(b) |
any loan made by any member of the Group to any other member of the Group, provided that the aggregate amount of all loans made by any member of the Nigeria Group to Subsidiaries of the Company (other than to a member of the Nigeria Group) does not exceed USD 50,000,000 (or its equivalent in other currencies) at any time; |
(c) |
a loan made by the Company, an Obligor or a Material Subsidiary to an employee or director of the Group, provided that the amount of that loan when aggregated with the amount of all loans to employees and directors by the Company, an Obligor or a Material Subsidiary does not exceed the greater of USD 20,000,000 (or its equivalent in other currencies) and an amount equal to zero point five per cent. (0.5%) of Total Assets at any time; |
(d) |
a loan made by the Company to any party that is a co-investor with the Company or any of its Subsidiaries in a Joint Venture, for the purposes of funding that co-investor’s investment in the Joint Venture, provided that such Joint Venture is consolidated for accounting purposes by the Company on or promptly after the date of such investment; and |
(e) |
any loans or credit not falling into any of the above paragraphs provided that the aggregate principal amount of all such loans or credit does not at any time exceed USD 55,000,000 (or the equivalent in any other currency). |
“Permitted Payment” means:
(a) |
a payment of scheduled interest and or principal payment under loans permitted under paragraph (b) of Permitted Loan; |
(b) |
a payment by the Company in connection with management and related holding company fees and expenses payable to any of its Affiliates, provided that: |
(i) |
no Default has occurred and is continuing at such time or would result from the making of the payment; and |
(ii) |
the Relevant Test set out in paragraph (f) below is satisfied in respect of such payment; |
(c) |
repurchases of management equity in an amount of up to the greater of USD 20,000,000 (or its equivalent in other currencies) and an amount equal to zero point five per cent. (0.5%) of Total Assets at any time in any Financial Year, provided that: |
24
(i) |
no Default has occurred and is continuing at such time or would result from the making of the payment; and |
(ii) |
the Relevant Test set out in paragraph (f) below is satisfied in respect of such payment; |
(d) |
payments made or expected to be made by the Company pursuant to the exercise, in each case on a “cashless” or “net exercise” basis, of any option to purchase corporate stock, shares or membership interests granted to any future, present or former employee, director, officer, contractor or consultant of the Company or any Subsidiary of the Company pursuant to any employee benefit plans or arrangements, including for the purpose of satisfying any taxes (including estimated taxes) due as a result of the exercise of any such option; |
(e) |
a declaration and payment by the Company of dividends on the common stock or common equity interests of the Company or any Holding Company following an Equity Offering of such common stock or common equity interests, provided that: |
(i) |
no Default has occurred and is continuing at such time or would result from the making of the payment; and |
(ii) |
such amount does not exceed in any fiscal year: |
(A) |
6.00% of the net cash proceeds received by the Company from such Equity Offering or contributed to the equity (other than through the issuance of “Disqualified Stock” or “Designated Preference Shares” (each as defined in the Sierra Senior Notes Indenture) or through an “Excluded Contribution” or “Excluded Amounts” or a “Parent Debt Contribution” (each as defined in the Sierra Senior Notes Indenture)) of the Company; and |
(B) |
following an Equity Offering, an amount equal to 6.00% of the Market Capitalisation provided that, in the case of this clause (B) after giving pro forma effect to such loans, advances, dividends or distributions, the Leverage Ratio shall be equal to or less than 4.00 to 1.00; and |
(f) |
a payment not otherwise permitted by the preceding paragraphs, by the Company, provided that: |
(i) |
no Default has occurred and is continuing at such time or would result from the making of the payment; and |
(ii) |
the Leverage Ratio and Interest Cover Ratio, calculated at the time such payment is to be made (on a pro forma basis after including in the calculations of such ratio the amount of the payment to be made), calculated by reference to the most recent Annual Financial Statements or Quarterly Financial Statements delivered to the Facility Agent in accordance with Clause 19.1 (Financial Statements) and the relevant Compliance Certificate, adjusted for the incurrence of any Financial Indebtedness since the last Quarter Date and including any other relevant adjustments to take into account the activities of the Group since the last Quarter Date, comply with the covenanted ratios for the immediately following Quarter Date set out in Clause 20.2 (Financial Condition) (the “Relevant Test”), |
and, for the avoidance of doubt, the Relevant Test will also apply to any payment referred to in paragraphs (b) and (c) above.
25
“Permitted Reorganisation” means:
(a) |
a reorganisation on a solvent basis involving the business or assets of, or shares of any member of the Group: |
(i) |
where the relevant member of the Group remains the surviving entity and the jurisdiction of incorporation of such member of the Group remains the same; and |
(ii) |
where the Finance Parties (or the Security Agent on their behalf) will continue to have the same or substantially equivalent security over the same or substantially equivalent assets (to the extent such assets, shares or other interests are not disposed of as permitted under this Agreement) and, to the extent applicable, benefit from the same or substantially equivalent guarantees, but subject always to, the terms of this Agreement (and the Facility Agent has received a legal opinion to this effect in form and substance satisfactory to it); |
(b) |
for the purposes of the definitions of Permitted Acquisition and Permitted Disposal only, in respect of a Material Subsidiary which is not a Guarantor, a reorganisation involving the business or assets of, or shares of that entity where the relevant entity remains the surviving entity and the jurisdiction of incorporation of the relevant entity remains the same; |
(c) |
a transfer of all of the issued share capital of the Company to a newly incorporated holding company, subject to the conditions in the definition of Change of Control; |
(d) |
any merger or reorganisation of two or more members of the Group (other than the Company) where either: |
(i) |
one of such members of the Group is the surviving entity; or |
(ii) |
the issued share capital of all such entities is transferred to another existing member of the Group or a newly incorporated entity, |
in each case, provided that:
(A) |
where a member of the Group is the surviving entity, the jurisdiction of incorporation of such member of the Group remains the same; |
(B) |
where a newly incorporated entity is the surviving entity, its jurisdiction of incorporation is the same as that of any member of the Group undergoing such merger or reorganisation; and |
(C) |
where any such member of the Group subject to such merger or reorganisation is an Obligor: |
(1) |
the surviving entity is an Obligor; or |
(2) |
if, as a result of the laws applicable in the jurisdiction of the entities subject to such merger or reorganisation, it is not possible for the surviving entity to effectively accede to this Agreement as a Guarantor prior to the date of such merger or reorganisation, the Company shall provide written notice to the Facility Agent on or around the date of completion of the relevant merger or reorganisation of such merger or reorganisation occurring (the “Effective Reorganisation Date”) and procure that the surviving entity shall accede to this Agreement promptly and in any event within no more than 10 Business Days of the Effective Reorganisation Date; and |
26
(e) |
any other reorganisation approved by the Majority Lenders. |
“Permitted Security” means:
(a) |
any charge or lien (including any netting or set-off as a result of a fiscal unity (fiscale eenheid) for Dutch tax purposes) arising by operation of law and in the ordinary course of trading or business activities of the Company or a Material Subsidiary and not as a result of any default or omission by the Company or the Material Subsidiary; |
(b) |
any retention of title arrangements, hire purchase or conditional sale arrangement or arrangements having similar effect arising in the ordinary course of trading or business activities of the Company or a Material Subsidiary with suppliers of goods to the Company or a Material Subsidiary on the supplier’s standard or usual terms and not arising as a result of any default or omission by the Company or the relevant Material Subsidiary and which is discharged within a period of time customary for such arrangements; |
(c) |
any Security created: |
(i) |
under or pursuant to any Finance Document (including the Security Documents); or |
(ii) |
in connection with a Bridge Facility, provided that the Security granted is only over the shares (or similar ownership interests) in, or any receivables owed to or by, or any assets of: |
(A) |
the relevant target acquired using funds made available pursuant to that Bridge Facility; |
(B) |
the relevant bidco or bidcos incorporated for the purposes of acquiring that target or its assets; and/or |
(C) |
the Holding Company (other than an Obligor) of that bidco or bidcos; |
(d) |
any Security or Quasi-Security listed in Schedule 11 (Existing Security), together with any Security or Quasi-Security replacing any of the same where the assets subject to the replacement Security or Quasi-Security are the same (or part of the same) assets subject to the Security or Quasi-Security being replaced; |
(e) |
any netting or set-off arrangement entered into under a derivative transaction and excluding any Security or Quasi-Security under a credit support arrangement; |
(f) |
any Security over or affecting any asset acquired by the Company or a Material Subsidiary after the date of this Agreement, if: |
(i) |
the Security was not created in contemplation of the acquisition of that asset by the Company or the Material Subsidiary; |
(ii) |
the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by the Company or the Material Subsidiary; and |
(iii) |
such Security is released or discharged within three months of the date of acquisition of the asset (unless permitted to remain under any other paragraph of this definition); |
(g) |
any Security arising under any Lease over the operating asset subject to the Lease provided that the Financial Indebtedness secured thereby is permitted pursuant to the Finance Documents; |
27
(h) |
any Security over goods and documents of title to goods arising in the ordinary course of a documentary credit transaction entered into in the ordinary course of trading or business activities of the Company or a Material Subsidiary; |
(i) |
any netting or set-off arrangement entered into by the Company or a Material Subsidiary arising in connection with a cash management or pooling arrangement entered into in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances of the Company or a Material Subsidiary but only so long as (i) such arrangement is not established with the primary intention of preferring any lenders, and (ii) any overdraft facility connected with such arrangement is permitted under the Finance Documents; |
(j) |
any Security over rental deposits arising in the ordinary course of trading or business activities of the Company or a Material Subsidiary in respect of any property leased or licensed by the Company in respect of amounts representing not more than 12 Months’ rent payments for that property; |
(k) |
any Security over bank accounts granted as part of that the relevant bank’s standard terms and conditions (including but not limited to any Security or Quasi-Security arising under clause 24 or 25 of the general banking conditions (algemene bankvoorwaarden) of any member of the Dutch Bankers’ Association (Nederlandse Vereniging van Banken) or any similar term applied by a financial institution in a jurisdiction where a member of the Group has a bank account pursuant to its general terms and conditions); |
(l) |
any Security relating to payments into court or arising under any court order or injunction or security for costs arising in connection with any litigation or court proceedings being contested by the Company or a Material Subsidiary in good faith (and which do not otherwise give rise to an Event of Default); |
(m) |
any Security arising pursuant to an order of attachment or injunction restraining disposal of assets or similar legal process arising in connection with court proceedings which are contested by the Company or a Material Subsidiary in good faith by appropriate proceedings and which do not otherwise give rise to an Event of Default and would not otherwise be reasonably expected to have a Material Adverse Effect; |
(n) |
any Security over cash paid into an escrow account by any third party, the Company, an Obligor or a Material Subsidiary pursuant to any customary deposit or retention of purchase price arrangements entered into pursuant to any Permitted Acquisition; |
(o) |
any Security arising automatically by operation of law in favour of any government authority or organisation in respect of taxes, assessments or governmental charges which are being contested by the Company or a Material Subsidiary in good faith by appropriate proceedings and which would not be reasonably expected to have a Material Adverse Effect and in respect of which the Company or a Material Subsidiary has made adequate reserves; |
(p) |
any cash collateral provided in respect of letters of credit or bank guarantees to the issuer of such letters of credit or bank guarantees to the extent the Financial Indebtedness in relation to which such letters of credit or bank guarantees relate is permitted under the Finance Documents; |
(q) |
any Security on property or assets of a member of the Group (that is not a member of the Nigeria Group) to secure indebtedness of that member of the Group or any other Subsidiary of the Company that is not a member of the Nigeria Group, to the extent such Security is securing Financial Indebtedness incurred under paragraph (l) of the definition of Permitted Financial Indebtedness; |
28
(r) |
any Security or Quasi-Security to secure the performance of statutory obligations, trade contracts, insurance, surety or appeal bonds, workers compensation obligations, leases (including, without limitation, statutory and common law landlord’s liens), performance bonds, surety and appeal bonds or other obligations of a like nature incurred (including to secure letters of credit issued to assure payment of such obligations) or in connection with bids, tenders, contracts or leases to secure licenses, public or statutory obligations, in each case, incurred in the ordinary course of trading or business; |
(s) |
any Security or Quasi-Security on cash, Cash Equivalent Investments or other property arising in connection with the defeasance, discharge or redemption of Financial Indebtedness in the ordinary course of such Financial Indebtedness provided that no Event of Default is continuing at the date such Security or Quasi-Security is granted; |
(t) |
any Security or Quasi-Security on specific items of inventory or other goods (and the proceeds thereof) of any person securing such person’s obligations in respect of bankers’ acceptances issued or created in the ordinary course of business for the account of such person to facilitate the purchase, shipment or storage of such inventory or other goods; |
(u) |
any Security or Quasi-Security on property or assets under construction (and related rights) in favour of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets provided that such Security or Quasi-Security is released as soon as reasonably practicable (taking into consideration any relevant local law limitations and formalities) upon the discharge or release in full of the obligations secured by such Security or Quasi-Security; |
(v) |
any Security or Quasi-Security created with the prior written consent of the Majority Lenders; and |
(w) |
any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by the Company or any member of the Group other than any permitted under the preceding paragraphs) does not at any time exceed the greater of USD 100,000,000 (or its equivalent in other currencies) and 2.0% of the Total Assets at any time outstanding. |
“Permitted Transaction” means:
(a) |
any transaction (other than (i) any sale, lease, license, transfer or other disposal and (ii) the granting or creation of Security or the incurring or permitting to subsist of Financial Indebtedness) conducted in the ordinary course of trading or business activities of the relevant person on arm’s length terms; |
(b) |
the liquidation (solvent or otherwise) of any member of the Group that is not a Material Subsidiary and is not an Obligor and which, at such point in time, is not a party to any agreement or other transactions and does not trade and provided that: |
(i) |
as a result of such liquidation, all assets (to the extent existing after the relevant liquidation or to the extent not otherwise permitted to be disposed of) of that member of the Group are transferred to another member of the Group; and |
(ii) |
such liquidation could not reasonably be expected to have a material and adverse impact (directly or indirectly) on the Company, any other Obligor or any Material Subsidiary (whether pursuant to any requirement to make payment under a guarantee or otherwise); and |
(c) |
the solvent liquidation or sale, lease, license, transfer or other disposal of Nigeria Tower Interco B.V.. |
29
“Priority Debt Cap” means the greater of USD 1,890,000,000 and 200% of EBITDA of the Group.
“Pro Rata Share” means, at any time:
(a) |
for the purpose of determining a Lender’s participation in a Utilisation, the proportion which its Available Commitment then bears to the Available Facility; and |
(b) |
for any other purpose: |
(i) |
the proportion which a Lender’s participation in the Loans then bears to all the Loans; |
(ii) |
if there is no Loan then outstanding, the proportion which its Commitment then bears to the Total Commitments; or |
(iii) |
if there is no Loan then outstanding and the Total Commitments have been reduced to zero, the proportion which its Commitment bore to the Total Commitments immediately before the reduction. |
“QPP Certificate” has the meaning given to it in Clause 12.1 (Definitions).
“QPP Lender” has the meaning given to it in Clause 12.1 (Definitions).
“Quarterly Financial Statements” has the meaning given to it in of Clause 19.1 (Financial Statements).
“Quasi-Security” has the meaning given to it in Clause 22.9 (Negative Pledge).
“Quotation Day” means, in relation to any period for which an interest rate is to be determined two US Government Securities Business Days before the first day of that period (unless market practice differs in the relevant syndicated loan market, in which case the Quotation Day will be determined by the Facility Agent in accordance with that market practice (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days)).
“Receiver” means a receiver, a receiver and manager, or an administrative receiver of the whole or any part of the Security Assets.
“Reference Rate” means, in relation to any Loan:
(a) |
the applicable Term SOFR as of the Specified Time and for a period equal in length to the Interest Period of that Loan; or |
(b) |
as otherwise determined pursuant to Clause 10.1 (Unavailability of Term SOFR), |
and if, in either case, that rate is less than zero, the Reference Rate shall be deemed to be zero.
“Refinancing Facility” means any facility which refinances (a) any Existing Material Subsidiary Debt Facility provided to a Material Subsidiary at the date of this Agreement or (b) another Refinancing Facility.
“Related Fund” in relation to a fund (the “first fund”) means:
(a) |
a fund which is managed or advised by the same investment manager or investment adviser as the first fund; or |
(b) |
if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund. |
30
“Relevant Jurisdiction” means in relation to an Obligor or, where applicable, a Material Subsidiary:
(a) |
its jurisdiction of incorporation; and |
(b) |
any jurisdiction where any asset subject to any Security created or expressed to be created by it under a Security Document is situated. |
“Relevant Lenders” has the meaning given to it in Clause 4.1 (Initial Conditions Precedent).
“Relevant Market” means the market for overnight cash borrowing collateralised by US Government securities.
“Relevant Period” has the meaning given to it in Clause 20.1 (Financial Definitions).
“Repeating Representations” means:
(a) |
in relation to the Company, each of the representations and warranties set out in paragraphs (a) and (b) of Clause 18.2 (Status), Clauses 18.3 (Binding Obligations) to 18.7 (Governing Law and Enforcement) (inclusive), and paragraph (a) of Clause 18.10 (No Default), Clause 18.15 (Good Title) and paragraph (a)(i) of Clause 18.20 (Sanctions); and |
(b) |
in relation to a Guarantor, each of the representations and warranties set out in paragraph (b) of Clause 18.2 (Status), Clause 18.3 (Binding Obligations), Clause 18.4 (Non-Conflict with other Obligations), Clause 18.5 (Power and Authority), Clause 18.6 (Validity and Admissibility in Evidence), Clause 18.7 (Governing Law and Enforcement), paragraph (a) of Clause 18.10 (No Default) and paragraph (a)(i) of Clause 18.20 (Sanctions). |
“Repayment Date” means each date set out in paragraph (a) of Clause 6.1 (Repayment of Loans).
“Repayment Instalment” has the meaning given to it in in paragraph (a) of Clause 6.1 (Repayment of Loans).
“Representative” means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
“Resignation Letter” means a letter substantially in the form set out in Schedule 9 (Form of Resignation Letter), with any amendments the Facility Agent and the Company may agree.
“Resolution Authority” means any body which has authority to exercise any Write-down and Conversion Powers.
“Restricted Party” means a person that is:
(a) |
listed on, or owned or controlled by a person listed on, or acting on behalf or at the direction of a person listed on, any Sanctions List; |
(b) |
located in, incorporated under the laws of, or owned or (directly or indirectly) controlled by, or acting on behalf or at the direction of, a person located in or organised under the laws of a country or territory which is a Sanctioned Country; or |
(c) |
otherwise a target of Sanctions (“target of Sanctions” meaning a person with whom a US person or other legal or natural person subject to the jurisdiction or authority of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities without all appropriate licenses or exemptions issued by all applicable Sanctions Authorities). |
31
“Revolving Credit Facility” means the up to USD 300,000,000 revolving credit facility dated 30 March 2020 between, amongst others, the Company and Citibank Europe PLC, UK Branch as facility agent, as amended and restated pursuant to an amendment and restatement agreement dated 2 June 2021, as amended on 29 September 2021 and as further amended and restated on 6 November 2023 and as may be further amended and / or restated from time to time.
“Rialto Senior Notes” means the senior notes issued by Holdco pursuant to the terms of the Rialto Senior Notes Indenture, together with any additional notes issued from time to time under the Rialto Senior Notes Indenture entered into by Holdco as issuer.
“Rialto Senior Notes Indenture” means the senior notes indenture dated 18 September 2019 in connection with the Rialto Senior Notes between, among others, Holdco as issuer and Citibank, N.A., London Branch as trustee, principal paying agent, transfer agent and registrar, as amended and supplemented by a first supplemental indenture dated 17 June 2021 between, among others, Holdco as issuer and Citibank, N.A., London Branch as trustee, principal paying agent, transfer agent and registrar and as amended and supplemented from time to time.
“Sanctioned Country” means a country or territory which is, or whose government is, the subject or target of comprehensive country-wide or territory-wide Sanctions (being, at the date of this Agreement, Crimea, Cuba, Iran, North Korea, Russia, Syria and the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and Crimea region of Ukraine).
“Sanctions” means the trade, economic or financial sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by:
(a) |
the United States of America; |
(b) |
the United Nations; |
(c) |
the European Union; |
(d) |
the United Kingdom; |
(e) |
France; |
(f) |
the Cayman Islands government, including pursuant to any sanctions legislation extended to the Cayman Islands by order of the His Majesty in Council; and/or |
(g) |
the respective governmental institutions and agencies of any of the foregoing, including, without limitation, the Office of Foreign Assets Control of the US Department of Treasury, the United States Department of State and His Majesty’s Treasury, |
(together, the “Sanctions Authorities”).
“Sanctions List” means the “Specially Designated Nationals and Blocked Persons”, the “Sectoral Sanctions Identifications List” and the “List of Foreign Sanctions Evaders” maintained by the Office of Foreign Assets Control, the “Consolidated List of Financial Sanctions Targets” and the “List of Persons Subject to Restrictive Measures in View of Russia’s Actions Destabilising the Situation in Ukraine” maintained by His Majesty’s Treasury, or any similar list maintained by, or public announcement of Sanctions designation made by, any of the Sanctions Authorities.
“Secured Party” means a Finance Party, Receiver or Delegate.
“Security” means a mortgage, charge, pledge, lien, assignment by way of security, hypothecation or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
32
“Security Agent” means any person which accedes to this Agreement in such a capacity in accordance with Clause 28.12 (Appointment and Resignation of an Agent).
“Security Asset” means each asset of the Company which from time to time is, or is intended to be, subject to a Security Document.
“Security Document” means any document evidencing or creating (or expressed to evidence or create) security over any asset to secure any obligation of the Company under the Finance Documents.
“Selection Notice” means a notice substantially in the form set out in Part 2 of Schedule 3 (Requests and Notices) given in accordance with Clause 9 (Interest Periods).
“Senior Notes” means
(a) |
the Rialto Senior Notes; and |
(b) |
the Sierra Senior Notes. |
“Senior Notes Indenture” means:
(a) |
the Rialto Senior Notes Indenture; and |
(b) |
the Sierra Senior Notes Indenture. |
“Shareholder Loan” means:
(a) |
a Company Shareholder Loan; and |
(b) |
any Nigeria Shareholder Loan. |
“Sierra Senior Notes” means the senior notes issued by the Company pursuant to the terms of the Sierra Senior Notes Indenture, together with any additional notes issued from time to time under the Senior Notes Indenture entered into by the Company as issuer.
“Sierra Senior Notes Indenture” means the senior notes indenture dated 29 November 2021 in connection with the Sierra Senior Notes between, among others, the Company as issuer and Lucid Trustee Services Limited as trustee, as amended and supplemented from time to time.
“Signing Date” means the date of this Agreement.
“SOFR” means the secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published (before any correction, recalculation or republication by the administrator) by the Federal Reserve Bank of New York (or any other person which takes over publication of that rate).
“Specified Time” means a day or time determined in accordance with Schedule 13 (Timetables).
“Sponsor Affiliate” means an Affiliate of the Company provided that any direct or indirect shareholder of the Company shall not constitute a Sponsor Affiliate (save for a shareholder which owns, legally and beneficially, more than 50% of the shares in the Company).
“Subordination Agreement” means the subordination agreement entered into on or around the date of this Agreement between the Company, Holdco, IHS (Nigeria) Limited, IHS Towers NG Limited, INT Towers Limited, IHS Netherlands (Interco) Coöperatief U.A., IHS FinCo Management Limited and the Facility Agent.
33
“Subsequent Bond Obligor” means a member of the Group (other than the Company or any Original Bond Obligor) which is a guarantor in respect of the Senior Notes.
“Subsidiary” means, with respect to any specified person:
(a) |
any corporation, association or other business entity of which more than 50% of the total voting power of shares of capital stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that person or one or more of the other Subsidiaries of that person (or a combination thereof); |
(b) |
any partnership or limited liability company of which (a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries of that person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or otherwise, and (b) such person or any Subsidiary of such person is a controlling general partner or otherwise controls such entity; or |
(c) |
any corporation, company, association, partnership, limited liability company or other business entity which is or is eligible to be consolidated in the financial statements of such person in accordance with IFRS. |
“Takeout Financing Side Letter” means the letter dated on or about the date of this Agreement and entered into between the Company for and on behalf of itself and as Obligors’ Agent and the Facility Agent.
“Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of them) imposed or demanded by a governmental or other related authority.
“Tax Deduction” means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.
“Tax Payment” means either an increase in a payment made by the Company to a Finance Party under Clause 12.2 (Tax Gross-Up) or a payment under Clause 12.3 (Tax Indemnity).
“Term SOFR” means the term SOFR reference rate administered by CME Group Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant period published (before any correction, recalculation or republication by the administrator) by CME Group Benchmark Administration Limited (or any other person which takes over the publication of that rate).
“Termination Date” means the date falling 24 months from the date of this Agreement.
“Third Parties Act” means the Contracts (Rights of Third Parties) Act 1999.
“Total Commitments” means the aggregate of the Commitments, being USD 270,000,000 at the date of this Agreement.
“Trade Instruments” means any performance bonds, advance payment bonds or documentary letters of credit issued in respect of the obligations of any member of the Group arising in the ordinary course of trading or business of that member of the Group which, in each case, is not (or will not be) outstanding for a period longer than 12 months from the date such instrument is issued.
34
“Transfer Certificate” means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate), with any amendments the Facility Agent may approve or reasonably require, or any other form agreed between the Facility Agent and the Company.
“Transfer Date” means, in relation to an assignment or a transfer, the later of:
(a) |
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and |
(b) |
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate. |
“UK” means the United Kingdom of Great Britain and Northern Ireland.
“UK Bail-In Legislation” means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“Unpaid Sum” means any sum due and payable but unpaid by the Company under the Finance Documents.
“US” means the United States of America.
“US Government Securities Business Day” means any day other than:
(a) |
a Saturday or Sunday; and |
(b) |
a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government securities. |
“Utilisation” means a utilisation of the Facility.
“Utilisation Date” means the date of a Utilisation, being the date on which the relevant Loan is or is to be made.
“Utilisation Request” means a notice substantially in the form set out in Part 1 of Schedule 3 (Requests and Notices)
“VAT” means:
(a) |
any value added tax imposed by the Value Added Tax Act 1994; |
(b) |
any Tax imposed in compliance with Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and |
(c) |
any other Tax of a similar nature whether imposed in the United Kingdom or in a member state of the European Union in substitution for, or levied in addition to, such Tax referred to in paragraphs (a) or (b) above, or imposed elsewhere. |
“Write-Down and Conversion Powers” means:
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; |
(b) |
in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial |
35
institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and
(c) |
in relation to any other applicable Bail-In Legislation: |
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and |
(ii) |
any similar or analogous powers under that Bail-In Legislation. |
1.2 |
Construction |
(a) |
Unless this Agreement expressly provides to the contrary, any reference in this Agreement to: |
(i) |
a Party or any other person includes its successors in title, permitted assigns and permitted transferees to, or of, all or any combination of its rights and obligations under the Finance Documents; |
(ii) |
an amendment includes a supplement, novation, extension (whether of maturity or otherwise), restatement, re-enactment or replacement (however fundamental and whether or not more onerous) and amended will be construed accordingly; |
(iii) |
assets includes present and future properties, revenues and rights of every description; |
(iv) |
a Lender’s “cost of funds” in relation to its participation in a Loan is a reference to the average cost (determined either on an actual or a notional basis) which that Lender would incur if it were to fund, from whatever source(s) it may reasonably select, an amount equal to the amount of that participation in that Loan for a period equal in length to the Interest Period of that Loan; |
(v) |
disposal includes a sale, transfer, assignment, grant, lease, licence, declaration of trust or other disposal, whether voluntary or involuntary, and dispose will be construed accordingly; |
(vi) |
guarantee means (other than in Clause 16 (Guarantee and Indemnity) and the Nigeria Guarantee) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness; |
36
(vii) |
a Finance Document or any other agreement or instrument includes (without prejudice to any restriction on amendments) any amendment to that Finance Document or other agreement or instrument, including any change in the purpose of, any extension of or any increase in the amount of a facility or any additional facility; |
(viii) |
a group of Lenders includes all the Lenders and a group of Finance Parties includes all the Finance Parties; |
(ix) |
indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; |
(x) |
know your customer checks is the identification checks that a Finance Party requests to meet its obligations under any applicable law or regulation to identify a person who is (or is to become) its customer; |
(xi) |
a person includes any individual, firm, company, exempted company, corporation, government, state or agency of a state or any association or body (including a partnership, trust, fund, joint venture or consortium), or any other entity (whether or not having separate legal personality); |
(xii) |
a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, being of a type with which a person to which it applies is generally accustomed to comply) of any governmental, inter- governmental or supranational body, agency or department, or of any regulatory, self-regulatory or other authority or organisation; |
(xiii) |
a currency is a reference to the lawful currency for the time being of the relevant country; |
(xiv) |
a provision of law is a reference to that provision as amended and includes any subordinate legislation; and |
(xv) |
a time of day is a reference to London time. |
(b) |
The determination of the extent to which a rate is for a period equal in length to an Interest Period will disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement. |
(c) |
A Clause or a Schedule is a reference to a clause of or a schedule to this Agreement. |
(d) |
The headings in this Agreement are for ease of reference only and do not affect its interpretation. |
(e) |
EUR denotes the lawful currency of the Participating Member States. |
(f) |
NGN denotes the lawful currency of Nigeria. |
(g) |
$, USD, US dollars and dollars denote the lawful currency of the United States of America. |
(h) |
Unless this Agreement expressly provides to the contrary: |
37
(i) |
a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement; |
(i) |
a Default (including an Event of Default) is continuing if it has not been remedied or waived and an Event of Default is also continuing if the Facility Agent has accelerated in full all amounts outstanding under the Finance Documents at a time when an Event of Default was otherwise continuing; and |
(ii) |
any obligation of an Obligor under the Finance Documents which is not a payment obligation remains in force for so long as any payment obligation of any Obligor is outstanding or any Commitment is in force under the Finance Documents. |
(iii) |
Any reference within a Clause to this Clause means the entirety of that Clause. |
(j) |
A reference in this Agreement to a page or screen of an information service displaying a rate shall include: |
(i) |
any replacement page of that information service which displays that rate; and |
(ii) |
the appropriate page of such other information service which displays that rate from time to time in place of that information service, |
and, if such page or service ceases to be available, shall include any other page or service displaying that rate specified by the Facility Agent after consultation with the Company.
1.3 |
Third Party Rights |
(a) |
Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Third Parties Act to enforce or to enjoy the benefit of any term of this Agreement. |
(b) |
Subject to paragraph (b) of Clause 38.3 (Other Exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time. |
1.4 |
Dutch Terms |
In this Agreement, where it relates to a Dutch person or the context so requires, a reference to:
(a) |
The Netherlands means the European part of the Kingdom of the Netherlands and Dutch means in or of The Netherlands; |
(b) |
works council means each works council (ondernemingsraad) or central or groups works council (central of groeps ondernemingsraad) having jurisdiction over that person; |
(c) |
a necessary action to authorise includes any action required to comply with the Works Councils Act of The Netherlands (Wet op de ondernemingsraden), followed by a positive advice (advies) from the works council of that person; |
(d) |
financial assistance includes any act contemplated by Section 2:98c of the Dutch Civil Code; |
(e) |
constitutional documents means the articles of association (statuten) and deed of incorporation (akte van oprichting) and an up-to-date extract of registration of the Trade Register of the Dutch Chamber of Commerce; |
38
(f) |
a security interest or security includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), right of retention (recht van retentie), right to reclaim goods (recht van reclame) and any right in rem (beperkt recht) created for the purpose of granting security (goederenrechtelijke zekerheid); |
(g) |
a winding-up, administration or dissolution includes declared bankrupt (failliet verklaard) or dissolved (ontbonden); |
(h) |
a moratorium includes surseance van betaling and a moratorium is declared includes surseance verleend; |
(i) |
any procedure or step taken in connection with insolvency proceedings includes that person having filed a notice under Section 36 of the Tax Collection Act of The Netherlands (Invorderingswet 1990); |
(j) |
a liquidator includes a curator; |
(k) |
an administrator includes a bewindvoerder, a herstructureringsdeskundige or an observator; |
(l) |
a receiver or an administrative receiver does not include a curator or bewindvoerder; and |
(m) |
an attachment includes a beslag. |
1.5 |
Exchange Rate Fluctuations and Baskets |
When applying any baskets, monetary limits, thresholds and other exceptions to the representations and warranties, undertakings, Events of Default and Material Subsidiary Events of Default under the Finance Documents, the equivalent to an amount in dollars as on the date of the relevant member of the Group incurring or making the relevant disposal, acquisition, investment, lease, loan, debt or guarantee or other relevant action shall be applicable. No Event of Default, Material Subsidiary Event of Default or breach of any representation and warranty or undertaking under the Finance Documents shall arise merely as a result of a subsequent change in the dollar equivalent.
1.6 |
Electronic Signatures |
The Parties acknowledge and agree that they may execute the Finance Documents and any variation or amendment to the same, by electronic instrument. The Parties agree that the electronic signatures appearing on the document shall have the same effect as handwritten signatures and the use of an electronic signature on any Finance Document shall have the same validity and legal effect as the use of a signature affixed by hand and is made with the intention of authenticating such Finance Document, and evidencing the parties’ intention to be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise each other to the lawful processing of personal data of the signers for contract performance and their legitimate interests including contract management.
2. |
The Facility |
2.1 |
The Facility |
Subject to the terms of this Agreement, the Lenders make available to the Company a term loan facility in an aggregate amount equal to the Total Commitments.
39
2.2 |
Increase |
(a) |
The Company may by giving prior notice to the Facility Agent by no later than the date falling 30 Business Days after the effective date of a cancellation of: |
(i) |
the Available Commitments of a Defaulting Lender in accordance with Clause 7.10 (Right of Cancellation in Relation to a Defaulting Lender); |
(ii) |
the Commitments of a Lender in accordance with: |
(A) |
Clause 7.1 (Mandatory Prepayment – Illegality); or |
(B) |
Paragraph (a) of Clause 7.9 (Right of Replacement or Repayment and Cancellation in Relation to a Single Lender); |
request that the Commitments relating to the Facility be increased (and the Commitments relating to the Facility shall be so increased) in an aggregate amount of up to the amount of the Available Commitments or Commitments relating to the Facility so cancelled as follows:
(C) |
the increased Commitments will be assumed by one or more Lenders or other banks or financial institutions (each an “Increase Lender”) selected by the Company and each of which confirms its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender (for the avoidance of doubt, no Party shall be obliged to assume the obligations of a Lender pursuant to this Clause 2.2 without the prior consent of that Party); |
(D) |
the Company and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Company and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender; |
(E) |
each Increase Lender shall become a Party as a “Lender” and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender; |
(F) |
the Commitments of the other Lenders shall continue in full force and effect; and |
(G) |
any increase in the Commitments relating to the Facility shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied. |
(b) |
An increase in the Commitments relating to the Facility will only be effective on: |
(i) |
the execution by the Facility Agent of an Increase Confirmation from the relevant Increase Lender; and |
(ii) |
in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase the performance by the Facility Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Facility Agent shall promptly notify the Company and the Increase Lender. |
40
(c) |
Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective. |
(d) |
The Company shall promptly on demand pay the Facility Agent and the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by either of them and, in the case of the Security Agent, by any Receiver or Delegate in connection with any increase in Commitments under this Clause 2.2. |
(e) |
The Company may pay (or procure the payment) to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender in a Fee Letter. |
(f) |
Each Party shall co-operate to ensure that, on and following the date on which any increase in Commitments is effective, the proportion of the aggregate amount of all Loans under the affected Facility which each Lender holds is the same as the proportion which the Commitment of each Lender at such time bears to the Total Commitments. |
(g) |
Clause 25.4 (Limitation of Responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to: |
(i) |
an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase; |
(ii) |
the “New Lender” were references to that “Increase Lender”; and |
(iii) |
a re-transfer and re-assignment were references to respectively a transfer and assignment. |
2.3 |
Finance Parties’ Rights and Obligations |
(a) |
The obligations of each Finance Party under the Finance Documents are several. |
(b) |
Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. |
(c) |
No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents. |
(d) |
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and they include the right to repayment of any debt owing to that Finance Party under the Finance Documents. |
(e) |
Any debt arising under the Finance Documents to a Finance Party is a separate and independent debt. Any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in the Facility or its role under a Finance Document is a debt owing to that Finance Party by that Obligor (including if it is payable to an Agent on that Finance Party’s behalf). |
(f) |
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents. |
2.4 |
Obligors’ Agent |
(a) |
Each Obligor (other than the Company) by its execution of this Agreement or an Accession Letter irrevocably appoints the Company (acting through one or more |
41
authorised signatories) to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:
(i) |
the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and |
(ii) |
each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company, |
and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.
(b) |
Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail. |
3. |
Purpose |
3.1 |
Purpose |
The Company must apply all amounts borrowed by it under the Facility towards:
(a) |
the payment and cancellation (or the reimbursement of the Company for the prior payment and cancellation) of any Financial Indebtedness permitted under paragraph (n) of the definition of Permitted Financial Indebtedness incurred by any member of the Nigeria Group which is denominated in dollars; |
(b) |
general corporate purposes of the Group including, but not limited to, capital expenditure, the financing of (i) working capital requirements of the Group and (ii) the purchase price of any acquisition from time to time and any related fees, costs and expenses; and/or |
(c) |
payment of costs and expenses incurred in connection with the Finance Documents. |
3.2 |
Monitoring |
No Finance Party is bound to monitor or verify the application of any utilisation of the Facility.
4. |
Conditions of Utilisation |
4.1 |
Initial Conditions Precedent |
No Utilisation Request may be given unless the Facility Agent has received all of the documents and other evidence listed in Part 1 of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Majority Lenders and each Original Lender and/or each Affiliate of an Original Lender that has become a Lender after the date of this Agreement but prior to the date of delivery of that first Utilisation Request (the “Relevant Lenders”) (or the receipt of such documents and evidence has been waived by the Relevant Lenders).
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The Facility Agent must notify the Company promptly upon the Relevant Lenders being so satisfied.
4.2 |
Further Conditions Precedent |
The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ Participation) if on the date of the Utilisation Request and on the proposed Utilisation Date for the relevant Loan:
(a) |
no Default is continuing or would result from the proposed Loan; |
(b) |
the Repeating Representations are correct in all material (except where that representation and warranty is already qualified by materiality under Clause 18 (Representations)) respects; and |
(c) |
no Material Subsidiary Event of Default is continuing. |
4.3 |
Maximum Number |
(a) |
No Utilisation Request may be given if, as a result of the proposed Utilisation more than two Loans would be outstanding. |
(b) |
The Company may not request that a Loan be divided. |
5. |
Utilisation |
5.1 |
Delivery of a Utilisation Request |
The Company may borrow a Loan by delivery to the Facility Agent of a duly completed Utilisation Request not later than the Specified Time.
5.2 |
Completion of a Utilisation Request |
(a) |
A Utilisation Request for a Loan is irrevocable and will not be regarded as having been duly completed unless: |
(i) |
the proposed Utilisation Date is a Business Day within the Availability Period; |
(ii) |
the currency and amount of the Loan comply with Clause 5.3 (Currency and Amount); and |
(iii) |
the proposed Interest Period of the Loan complies with Clause 9 (Interest Periods). |
(b) |
Only one Loan may be requested in each Utilisation Request. |
5.3 |
Currency and Amount |
(a) |
The currency specified in a Utilisation Request must be USD. |
(b) |
The amount of the proposed Loan must be: |
(i) |
a minimum of USD 10,000,000 and an integral multiple of USD 5,000,000 or, if less, the Available Facility; or |
(ii) |
such other amount as the Facility Agent may agree, |
and, in any event, such that it is less than or equal to the Available Facility.
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5.4 |
Lenders’ Participation |
(a) |
If the conditions set out in this Agreement have been met each Lender must make its participation in a requested Loan available by the Utilisation Date through its Facility Office to the Facility Agent. |
(b) |
The amount of each Lender’s participation in a Loan will be its Pro Rata Share immediately before making the Loan. |
(c) |
No Lender is obliged to participate in a Loan if, as a result: |
(i) |
its participation in the Loans would exceed its Commitment; or |
(ii) |
the Loans would exceed the Total Commitments. |
(d) |
The Facility Agent must notify each Lender of the details of each Loan and the amount of its participation in that Loan and, if different, the amount of that participation to be made available in accordance with Clause 32.1 (Payments to the Facility Agent) by the Specified Time. |
6. |
Repayment |
6.1 |
Repayment of Loans |
(a) |
The Company shall repay the aggregate outstanding amount of the Loans in instalments (each a “Repayment Instalment”) by repaying on each Repayment Date an amount which reduces the amount of the outstanding aggregate Loans by the amount set out opposite that Repayment Date below (each a “Repayment Instalment”): |
Repayment Date |
Repayment Instalment |
|---|---|
15 April 2024 |
USD 10,000,000 |
15 May 2024 |
USD 10,000,000 |
15 June 2024 |
USD 10,000,000 |
15 July 2024 |
USD 10,000,000 |
15 August 2024 |
USD 10,000,000 |
15 September 2024 |
USD 10,000,000 |
15 October 2024 |
USD 10,000,000 |
15 November 2024 |
USD 10,000,000 |
15 December 2024 |
USD 10,000,000 |
15 January 2025 |
USD 10,000,000 |
15 February 2025 |
USD 10,000,000 |
15 March 2025 |
USD 10,000,000 |
15 April 2025 |
USD 10,000,000 |
15 May 2025 |
USD 4,000,000 |
44
Repayment Date |
Repayment Instalment |
Termination Date |
The total remaining principal amount then outstanding under the Loans |
(b) |
The Company may not reborrow any part of the Facility which is repaid. |
6.2 |
Effect of cancellation and prepayment on scheduled repayments and reductions |
(a) |
If the Company cancels the whole or any part of any Available Commitment in accordance with Clause 7.8 (Right of cancellation and repayment in relation to a single Lender) or Clause 7.10 (Right of cancellation in relation to a Defaulting Lender) or if the Available Commitment of any Lender is cancelled under Clause 7.1 (Mandatory prepayment - Illegality), Clause 7.2 (Mandatory prepayment – Change of Control), Clause 7.3 (Mandatory prepayment- Material Subsidiary Event of Default) or Clause 7.4 (Mandatory prepayment – Sanctions Etc.), then (other than, in any relevant case, to the extent that any part of the relevant Available Commitment(s) so cancelled is subsequently increased pursuant to Clause 2.2 (Increase)) the amount of the Repayment Instalment for each Repayment Date falling after that cancellation will reduce pro rata by the amount cancelled. |
(b) |
If the Company cancels the whole or any part of any Available Commitment in accordance with Clause 7.6 (Voluntary cancellation) or if the whole or part of any Commitment is cancelled pursuant to Clause 7.8 (Automatic Cancellation) or Clause 7.5 (Mandatory Prepayment and Cancellation –Takeout Financing), then the amount of the Repayment Instalment for each Repayment Date falling after that cancellation will reduce in chronological order by the amount cancelled. |
(c) |
If any Loan is repaid or prepaid in accordance with Clause 7.8 (Right of cancellation and repayment in relation to a single Lender), Clause 7.1 (Mandatory prepayment - Illegality), Clause 7.2 (Mandatory prepayment – Change of Control), Clause 7.3 (Mandatory prepayment- Material Subsidiary Event of Default) or Clause 7.4 (Mandatory prepayment – Sanctions Etc.), then (other than to the extent that any part of the relevant Commitment is subsequently increased pursuant to Clause 2.2 (Increase)) the amount of the Repayment Instalments for the Facility for each Repayment Date falling after that repayment or prepayment will reduce pro rata by the amount of the Loan repaid or prepaid. |
(d) |
If any Loan is prepaid in accordance with Clause 7.7 (Voluntary prepayment) or with Clause 7.5 (Mandatory Prepayment and Cancellation –Takeout Financing), then the amount of the Repayment Instalment for each Repayment Date falling after that prepayment will reduce in chronological order by the amount of the Loan prepaid. |
7. |
Prepayment and Cancellation |
7.1 |
Mandatory Prepayment – Illegality |
(a) |
If, in any applicable jurisdiction, it becomes unlawful for a Lender or any of its Affiliates for that Lender to perform any of its obligations as contemplated by any Finance Document or to fund, issue or maintain its participation in any Loan, that Lender must notify the Facility Agent promptly on becoming aware of that event. |
(b) |
After a Lender notifies the Facility Agent under paragraph (a) above: |
(i) |
that Lender will not be obliged to fund a Loan; |
(ii) |
the Facility Agent must notify the Company promptly; |
45
(iii) |
with immediate effect, that Lender will not be obliged to fund any Loan; and |
(iv) |
unless that Lender’s participation and Commitment have been transferred pursuant to paragraph (d) of Clause 7.9 (Right of Replacement or Repayment and Cancellation in Relation to a Single Lender), on the date specified in paragraph (c) below: |
(A) |
the Company must repay or prepay that Lender’s participation in each Loan; and |
(B) |
that Lender’s Commitment will be cancelled. |
(c) |
The date for: |
(i) |
repayment or prepayment of a Lender’s participation in a Loan and cancellation of its corresponding Commitment will be: |
(A) |
the last day of the Interest Period of that Loan; or |
(B) |
if earlier, the date specified in that Lender’s notice to the Facility Agent under paragraph (a) above (which must be no earlier than the last day of any applicable grace period permitted by law); and |
(ii) |
cancellation of that Lender’s other Commitment will be the date specified in the Lender’s notice to the Facility Agent under paragraph (a) above (which must be no earlier than the last day of any applicable grace period permitted by law), |
provided that such a date must fall within 20 days after the Facility Agent has notified the Company under paragraph (b)(ii) above.
7.2 |
Mandatory Prepayment – Change of Control |
(a) |
For the purposes of this Clause 7.2: |
a “Change of Control” occurs if any person or group of persons acting in concert (other than any Permitted Transferee) gains direct or indirect control over the Company, provided that a Change of Control will not occur:
(i) |
solely as a result of all of the issued share capital of the Company (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital) being transferred to a newly-incorporated holding company (“TopCo”) if: |
(A) |
as a result of such transfer no person or persons acting in concert other than TopCo acquires direct or indirect control (as defined below) of the Company; |
(B) |
TopCo is not a Restricted Party; |
(C) |
prior to such transfer each Lender has received such documentation and evidence in respect of TopCo as necessary to pass all know your customer and similar checks; and |
46
(D) |
no person or persons acting in concert (other than any Permitted Transferee) shall acquire: |
(1) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to: |
(I) |
cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of TopCo; |
(II) |
appoint or remove all, or the majority, of the directors or other equivalent officers of TopCo; or |
(III) |
give directions with respect to the operating and financial policies of TopCo with which the directors or other equivalent officers of TopCo are obliged to comply; or |
(2) |
legally or beneficially more than 50% of the issued share capital of TopCo excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital; |
(ii) |
for the avoidance of doubt, as a result of the admission of any part of the share capital of the Company (or TopCo) to trading on any recognised stock or investment exchange or any other sale or issue of share capital of the Company (or TopCo) by way of flotation or public offering provided that, all of the conditions set out in paragraph (i) above are complied with; or |
(iii) |
as a result of any re-domiciliation of TopCo for internal structuring purposes provided that, all of the conditions set out in paragraph (i) above are complied with. |
“acting in concert” means acting together pursuant to an agreement or understanding (whether formal or informal);
“control” means:
(i) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to: |
(A) |
cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the Company; |
(B) |
appoint or remove all, or the majority, of the directors or other equivalent officers of the Company; or |
(C) |
give directions with respect to the operating and financial policies of the Company with which the directors or other equivalent officers of the Company are obliged to comply; or |
(ii) |
acquiring or holding beneficially more than 50% of the issued share capital of the Company (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); and |
47
“Permitted Transferee” means:
(i) |
any of African Tower Investment Limited, AIIF2 Towers Mauritius, ECP IHS (Mauritius) Limited, ECPIV-IHS Limited, ELQ Investors VIII Ltd, IFC Global Infrastructure Fund LP, International Finance Corporation, Korea Investment Corporation, Mobile Telephone Networks Netherlands BV, Towers One Limited, Towers Two Limited, Towers Three Limited, Emerging Capital Associates III LLC, ECP Manager LP, Ninety One Africa Private Equity Fund 2 LP, Ninety One Africa Frontier Private Equity Fund LP, Ninety One Fund Managers SA RF Proprietary Limited, Ninety One Africa Frontier Private Equity Associate Fund LP, Nederlandse Financierings-Maatscha PPIJ voor Ontwikkelingslanden N.V., Oranje-Nassau Developpement SCA FIAR, UBC Services Inc. and Warrington Investment PTE Ltd or any of their successors; |
(ii) |
a wholly-owned Subsidiary of any of the persons or entities listed in paragraph (i) above; and |
(iii) |
any person agreed between the Company and the Facility Agent (acting on the instructions of all Lenders), |
and in each case, which is not a Restricted Party.
(b) |
The Company must notify the Facility Agent promptly on becoming aware of any Change of Control. The Facility Agent must then promptly notify the Lenders of that event occurring. |
(c) |
After the occurrence of a Change of Control, no Lender will be obliged to fund a Loan and if a Lender so requires and notifies the Facility Agent within 20 Business Days of the Company notifying the Facility Agent of the Change of Control, the Facility Agent must, by not less than 30 days’ notice to the Company: |
(i) |
cancel the Commitment of that Lender; and |
(ii) |
declare the participation of that Lender in all outstanding Loans, together with accrued interest and all other amounts accrued or outstanding to that Lender under the Finance Documents, to be immediately due and payable. |
Any such notice will take effect in accordance with its terms.
7.3 |
Mandatory Prepayment – Material Subsidiary Event of Default |
(a) |
The Company must notify the Facility Agent promptly upon becoming aware of a Material Subsidiary Event of Default. The Facility Agent must notify the Lenders of the occurrence of a Material Subsidiary Event of Default promptly upon becoming aware of it (whether by way of a notification from the Company or otherwise). |
(b) |
While a Material Subsidiary Event of Default is continuing, if a Lender so requires and notifies the Facility Agent no later than 15 Business Days of the Company notifying the Facility Agent of such Material Subsidiary Event of Default: |
(i) |
that Lender will not be obliged to fund a Loan; |
(ii) |
the Company must repay or prepay that Lender’s participation in each Loan on the date specified in paragraph (c) below; and |
(iii) |
that Lender’s Commitment will be immediately cancelled, |
Any such notice will take effect in accordance with its terms.
48
(c) |
The date for repayment or prepayment of a Lender’s participation in a Loan will be the date falling three Business Days after the date of the notification to the Company under paragraph (b) above. |
(d) |
For the purpose of paragraph (b) above, a Material Subsidiary Event of Default is continuing until the later of the date on which (i) the Material Subsidiary Event of Default is no longer continuing in accordance with this Agreement or the relevant document evidencing the relevant Financial Indebtedness, as the case may be, and (ii) the Company notifies the Facility Agent in writing that such Material Subsidiary Event of Default is not continuing in accordance with this Agreement or the relevant document evidencing the relevant Financial Indebtedness. |
7.4 |
Mandatory Prepayment – Sanctions Etc. |
If any representation, warranty or statement made by an Obligor under or in connection with Clause 18.20 (Sanctions) or 18.21 (Anti-Bribery and Corruption Laws) is or proves to have been incorrect or misleading in any respect, or an Obligor breaches any of its obligations under Clause 22.4 (Sanctions) or Clause 22.5 (Anti-Bribery and Corruption and Anti-Money Laundering):
(a) |
the Company must notify the Facility Agent promptly upon becoming aware of that event; |
(b) |
a Lender shall not be obliged to fund a Loan; and |
(c) |
if a Lender so requires and notifies the Facility Agent no later than 15 Business Days of the Company notifying the Facility Agent of that event, the Facility Agent must, by not less than 20 days’ notice to the Company: |
(i) |
declare the participation of that Lender in all outstanding Loans, together with accrued interest and all other amounts accrued or outstanding to that Lender under the Finance Documents, to be immediately due and payable; and/or |
(ii) |
immediately cancel that Lender’s Commitment. |
Any such notice will take effect in accordance with its terms.
7.5 |
Mandatory Prepayment and Cancellation –Takeout Financing |
The Company shall prepay any outstanding Loans and cancel the Available Commitments from the net proceeds of certain types of financing of members of the Group, in accordance with the provisions of the Takeout Financing Side Letter and this Agreement.
7.6 |
Voluntary Cancellation |
(a) |
The Company may, if it gives the Facility Agent not less than five Business Days’ (or such shorter period as the Majority Lenders may agree) notice, cancel the whole or any part of the Available Facility. |
(b) |
Partial cancellation of the Available Facility under this Clause 7.5 must be in a minimum amount of USD 10,000,000. |
(c) |
Any cancellation in part under this Clause 7.5 will reduce the Commitment of each Lender pro rata. |
7.7 |
Voluntary Prepayment |
(a) |
The Company may, if it gives the Facility Agent not less than five Business Days’ (or in any case any such shorter period as the Facility Agent (acting on the instructions of |
49
the Majority Lenders) and the Facility Agent (acting on its own behalf) may agree) prior notice, prepay the whole or any part of a Loan at any time.
(b) |
A prepayment of part of a Loan under this Clause 7.6 must be in a minimum amount of USD 10,000,000. |
7.8 |
Automatic Cancellation |
(a) |
Subject to paragraph (b) below, the unutilised Commitment of each Lender will be automatically cancelled at close of business on the last day of the Availability Period. |
(b) |
If a Material Subsidiary Event of Default is continuing for a continuous period of more than 180 days following notification to the Facility Agent of such Material Subsidiary Event of Default under Clause 7.3 (Mandatory Prepayment – Material Subsidiary Event of Default) above, the Total Commitments will be automatically cancelled in full. |
7.9 |
Right of Replacement or Repayment and Cancellation in Relation to a Single Lender |
(a) |
If: |
(i) |
any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 12.2 (Tax Gross-Up); |
(ii) |
any Lender claims any amount from the Company under Clause 12.3 (Tax Indemnity) or Clause 13 (Increased Costs); |
(iii) |
any Lender invokes a Market Disruption under Clause 10.2 (Market Disruption); or |
(iv) |
any Lender becomes a Non-Consenting Lender, |
the Company may, while the circumstances giving rise to the requirement for that increase or payment of that amount continue, give notice to the Facility Agent of its intention to cancel the Commitment of that Lender and repay or prepay that Lender’s participation in all outstanding Loans, or of its intention to replace that Lender in accordance with paragraph (d) below.
(b) |
On receipt of a notice of prepayment and cancellation under paragraph (a) above in relation to a Lender: |
(i) |
the Commitment of that Lender will immediately be reduced to zero; and |
(ii) |
the Company must repay or prepay that Lender’s participation in each Loan on the date specified in paragraph (c) below. |
(c) |
The date for repayment or prepayment of a Lender’s participation in a Loan will be: |
(i) |
the last day of the Interest Period for that Loan which is current on the date of the notice under paragraph (a) above; or |
(ii) |
if earlier, the date specified in the Company’s notice to the Facility Agent under paragraph (a) above. |
(d) |
If: |
(i) |
any of the circumstances set out in paragraph (a) above apply to a Lender; or |
(ii) |
the Company becomes obliged to pay an amount in accordance with Clause 7.1 (Mandatory Prepayment – Illegality) to a Lender, |
50
the Company may, on not less than five Business Days’ notice to the Facility Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender must) transfer pursuant to Clause 25 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (a “Replacement Lender”) selected by the Company, which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with this Agreement for a purchase price in cash payable at the time of the transfer in an amount equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest (to the extent that the Facility Agent has not given a notification under Clause 25.9 (Pro Rata Interest Settlement)), Break Costs and other amounts payable in relation to it under the Finance Documents.
(e) |
The replacement of a Lender pursuant to paragraph (d) above will be subject to the following conditions: |
(i) |
in the event of a replacement of a Non-Consenting Lender, such replacement or prepayment must occur during a period of 60 days commencing on the date on which the relevant consent is requested; |
(ii) |
the Company will have no right to replace the Facility Agent; |
(iii) |
neither the Facility Agent nor any Lender will have any obligation to find a Replacement Lender; |
(iv) |
the Lender to be replaced will not be required to pay or surrender to such Replacement Lender any of the fees received by that Lender pursuant to the Finance Documents; and |
(v) |
the Lender to be replaced will only be obliged to transfer its rights and obligations in accordance with paragraph (d) above once it is satisfied that it has complied with any “know your customer” checks or other similar checks required under any applicable law or regulation in relation to that transfer. |
(f) |
A Lender to be replaced must perform the checks described in paragraph (e)(v) above as soon as reasonably practicable after delivery of a notice under paragraph (d) above and must notify the Facility Agent and the Company promptly when it is satisfied that it has complied with those checks. |
7.10 |
Right of Cancellation in Relation to a Defaulting Lender |
(a) |
If any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Facility Agent five Business Days’ notice of cancellation of each Available Commitment of that Lender. |
(b) |
On the notice referred to in paragraph (a) above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero. |
(c) |
The Facility Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders. |
7.11 |
Prepayment of Loans |
No Loan (or participation in a Loan) that is prepaid may be re-borrowed except (in the case of Clause 7.3 (Mandatory Prepayment – Material Subsidiary Event of Default) or Clause 7.4 (Mandatory Prepayment – Sanctions Etc.)) in accordance with the terms of Clause 7.13 (Reinstatement of Commitment).
51
7.12 |
Miscellaneous |
(a) |
Any notice of cancellation or prepayment under this Clause: |
(i) |
is irrevocable; and |
(ii) |
unless a contrary indication appears in this Agreement, must specify: |
(A) |
the date on which the relevant cancellation or prepayment is to be made; and |
(B) |
the amount of that cancellation or prepayment. |
(b) |
Any prepayment under this Agreement must be made together with accrued interest on the amount prepaid and, subject to any Break Cost, without premium or penalty. |
(c) |
No prepayment or cancellation is allowed except at the times and in the manner expressly provided for in this Agreement. |
(d) |
Subject to Clause 2.2 (Increase) and Clause 7.13 (Reinstatement of Commitment), no amount of the Commitments cancelled under this Agreement may be subsequently reinstated. |
(e) |
If the Facility Agent receives a notice under this Clause, it must promptly forward a copy of that notice to either the Company or the affected Lender(s), as appropriate. |
(f) |
If all or part of a Lender’s participation in a Loan is repaid or prepaid and is not available for re- borrowing, an equivalent amount of that Lender’s Commitment will be deemed to be cancelled on the date of repayment or prepayment (and for these purposes this includes any amount which may be reinstated under Clause 7.13 (Reinstatement of Commitment)). |
7.13 |
Reinstatement of Commitment |
(a) |
If all or any part of a Lender’s Commitment has been cancelled pursuant to paragraph (b) of Clause 7.3 (Mandatory Prepayment – Material Subsidiary Event of Default) or paragraph (c) of Clause 7.4 (Mandatory Prepayment – Sanctions Etc.), the Company may, by notice to the Facility Agent, request that Lender to reinstate its Commitment, and the cancelled Commitment of that Lender shall be so reinstated if that Lender confirms its willingness to reinstate its cancelled Commitment in writing to the Company and the Facility Agent. |
(b) |
The reinstatement of a Lender’s Commitment under paragraph (a) above shall take effect on the date the Facility Agent receives (or is deemed to have received, pursuant to Clause 34.3 (Delivery)) that Lender’s written confirmation of its willingness to reinstate its cancelled Commitment. |
7.14 |
Application of Prepayments |
Any prepayment of a Loan pursuant to Clause 7.7 (Voluntary Prepayment) will be applied pro rata to each Lender’s participation in that Loan.
52
8. |
Interest |
8.1 |
Calculation of Interest |
The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:
(a) |
Margin; and |
(b) |
Reference Rate. |
8.2 |
Payment of Interest |
Except where this Agreement expressly provides to the contrary, the Company must pay accrued interest on each Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six-Monthly intervals after the first day of the Interest Period).
8.3 |
Default Interest |
(a) |
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest will accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (c) below, is 2% per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each with a duration and Quotation Day selected by the Facility Agent (acting reasonably). |
(b) |
Any interest accruing under this Clause 8.3 will be immediately payable by the Obligor on demand by the Facility Agent. |
(c) |
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of its Interest Period: |
(i) |
the first Interest Period for that overdue amount will have a duration equal to the unexpired portion of the then current Interest Period relating to that Loan; and |
(ii) |
the rate of interest applying to the overdue amount during that first Interest Period will be 2% per annum higher than the rate which would have applied if the overdue amount had not become due. |
(d) |
Unpaid interest arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable. |
8.4 |
Notification of Rates of Interest |
(a) |
The Facility Agent must notify each relevant Party promptly of the determination of a rate of interest under this Agreement. |
(b) |
The Facility Agent must notify the Company promptly of each Funding Rate relating to a Loan. |
(c) |
This Clause 8.4 shall not require the Facility Agent to make any notification to any Party on a day which is not a Business Day. |
53
9. |
Interest Periods |
9.1 |
Selection of Interest Periods |
(a) |
The Company must select the Interest Period for a Loan in the applicable Utilisation Request for that Loan or in a Selection Notice. |
(b) |
Each Selection Notice is irrevocable and must be delivered to the Facility Agent by the Company not later than the Specified Time. |
(c) |
If the Company fails to deliver a Selection Notice to the Facility Agent in accordance with paragraph (b) above, the relevant Interest Period will be three Months. |
(d) |
Subject to the other provisions of this Clause, the Company may select an Interest Period for a Loan of one or three Months or any other period agreed by the Company, the Facility Agent (acting on the instructions of all Lenders) and the Facility Agent (acting on its own behalf). |
(e) |
Each Interest Period for a Loan will start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period. |
(f) |
No Interest Period for a Loan shall extend beyond the Termination Date. |
9.2 |
Non-Business Days |
If an Interest Period would otherwise end on a day which is not a Business Day, it will instead end on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
9.3 |
No Overrunning the Termination Date |
If an Interest Period would otherwise end after the Termination Date, it will be shortened so that it ends on the Termination Date.
9.4 |
No Overrunning a Margin Step-up Date |
If an Interest Period would otherwise end after a Margin Step-up Date, it will be shortened so that it ends on such Margin Step-up Date.
9.5 |
Notification |
The Facility Agent must notify each relevant Party of the duration of each Interest Period promptly after ascertaining it.
9.6 |
Consolidation of Loans |
If two or more Interest Periods relate to Loans and end on the same date, those Loans will, unless the Company specifies to the contrary in the Selection Notice for the next Interest Period, be consolidated into, and treated as, a single Loan on the last day of the Interest Period.
10. |
Changes to the Calculation of Interest |
10.1 |
Unavailability of Term SOFR |
(a) |
Shortened Interest Period: If no Term SOFR is available for the Interest Period of a Loan, the Interest Period of that Loan shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable Reference Rate for that shortened Interest Period shall be determined pursuant to the definition of “Reference Rate”. |
54
(b) |
Shortened Interest Period and Historic Term SOFR: If the Interest Period of a Loan is, after giving effect to paragraph (a) above, either the applicable Fallback Interest Period or shorter than the applicable Fallback Interest Period and, in either case, no Term SOFR is available for the Interest Period of that Loan, the applicable Reference Rate shall be the Historic Term SOFR for that Loan. |
(c) |
Cost of Funds: if no Term SOFR is available for the Interest Period of a Loan and it is not possible to calculate the Historic Term SOFR for that Loan, there will be no Reference Rate for the Loan and Clause 10.3 (Cost of Funds) will apply to the Loan for that Interest Period. |
10.2 |
Market Disruption |
If before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notification from a Lender or Lenders under a Loan (whose participations in that Loan exceed 35 % of that Loan) that its costs of funds relating to its participation in that Loan would be in excess of the Market Disruption Rate, then Clause 10.3 (Cost of Funds) will apply to that Loan for the relevant Interest Period.
10.3 |
Cost of Funds |
(a) |
If this Clause 10.3 (Cost of Funds) applies to a Loan for an Interest Period, the rate of interest on the relevant Loan for the relevant Interest Period will be the percentage rate per annum which is the sum of: |
(i) |
the Margin; and |
(ii) |
the weighted average of the rates notified to the Facility Agent by each Lender as soon as practicable but in any event within five Business Days before the date on which interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum its cost of funds relating to its participation in that Loan. |
(b) |
If this Clause 10.3 applies pursuant to Clause 10.1 (Unavailability of Term SOFR) or Clause 10.2 (Market Disruption) and the Facility Agent or the Company so requires, the Facility Agent and the Company must enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest. |
(c) |
Any alternative basis agreed pursuant to paragraph (b) above will, with the prior consent of all the Lenders and the Company, be binding on all Parties. |
(d) |
If this Clause 10.3 applies to a Loan but any Lender does not notify the Facility Agent of a rate by the time specified in paragraph (a)(ii) above, the rate of interest on the relevant Loan for the Interest Period will be calculated on the basis of the rates notified by the other Lenders. |
10.4 |
Notification to Company |
If Clause 10.3 applies the Facility Agent shall, as soon as is practicable, notify the Company.
10.5 |
Break Costs |
(a) |
The Company must pay to a Finance Party its Break Costs if all or any part of a Loan or Unpaid Sum is paid on a day other than the last day of an applicable Interest Period. |
(b) |
Each Lender must, as soon as reasonably practicable after a request by the Facility Agent or the Company, provide a certificate confirming the amount of any Break Costs it claims. |
55
11. |
Fees |
11.1 |
Commitment Fee |
(a) |
The Company must pay to the Facility Agent (for the account of each Lender) a commitment fee computed at the rate of 35% of the Margin on that Lender’s Available Commitment. |
(b) |
The commitment fee shall accrue on a daily basis for each day on which the Available Facility is greater than zero, from and including the date of this Agreement. |
(c) |
The accrued commitment fee is payable on the last day of each successive period of three Months commencing on or after the date of this Agreement and ending during the Availability Period, on the last day of the Availability Period, and, if cancelled in full, on the cancelled amount of a Lender’s Commitment at the time the cancellation is effective. |
11.2 |
Arrangement Fee |
The Company must pay to the Arranger (for its own account) an arrangement fee in the amount and manner agreed in a Fee Letter.
11.3 |
Facility Agent’s Fee |
The Company must pay to the Facility Agent (for its own account) an agency fee in the amount and manner agreed in a Fee Letter.
12. |
Tax Gross Up and Indemnities |
12.1 |
Definitions |
(a) |
In this Clause: |
“Cancelled Certificate” means any QPP Certificate in respect of which HM Revenue & Customs has given a notification under regulation 7(4)(b) of the QPP Regulations so that such QPP Certificate is a cancelled certificate for the purposes of the QPP Regulations.
“Company DTTP Filing” means an HM Revenue & Customs’ Form DTTP2 duly completed and filed by the Company, which:
(i) |
where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Part 1 of Schedule 1 (The Original Parties) and is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or |
(ii) |
where it relates to a Treaty Lender that is a New Lender or an Increase Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the documentation which it executes on becoming such a Lender and is filed with HM Revenue & Customs within 30 days of that date. |
“Protected Party” means a Finance Party which is subject to any liability, or is required to make any payment for Tax in relation to a sum received or receivable under a Finance Document.
“QPP Certificate” means a creditor certificate for the purposes of the QPP Regulations, given, in the case of an Original Lender, in the form set out in Part 3 of Schedule 1 (The Parties), or, in the case of a New Lender, in the form set out in Schedule 2 of Schedule 4 (Form of Transfer Certificate), or Schedule 2 of Schedule 5 (Form of Assignment Agreement), or, in the case of an Increase Lender, in the form set out in Schedule 2 of Schedule 7 (Form of Increase Confirmation), as applicable.
56
“QPP Lender” means a Lender which has delivered a QPP Certificate to the Company, provided that such QPP Certificate is not a Withdrawn Certificate or a Cancelled Certificate.
“QPP Regulations” means the Qualifying Private Placement Regulations 2015 (SI 2015/2002).
“Qualifying Lender” means:
(i) |
a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is: |
(A) |
a Lender: |
(1) |
which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or |
(2) |
in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or |
(B) |
a Lender which is: |
(1) |
a company resident in the United Kingdom for United Kingdom tax purposes; |
(2) |
a partnership each member of which is: |
(I) |
a company so resident in the United Kingdom; or |
(II) |
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; |
(3) |
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or |
(4) |
a Lender which is: |
57
(I) |
the scheme administrator of a registered pension scheme (as those terms are defined in section 989 of the ITA) (or a nominee thereof); or |
(II) |
any other person or body listed in section 936(2) of the ITA (or a nominee thereof); or |
(C) |
a Treaty Lender; or |
(D) |
a QPP Lender. |
“Tax Confirmation” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
(i) |
a company resident in the United Kingdom for United Kingdom tax purposes; |
(ii) |
a partnership each member of which is: |
(A) |
a company so resident in the United Kingdom; or |
(B) |
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or |
(iii) |
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or |
(iv)
(A) |
a scheme administrator of a registered pension scheme (as those terms are defined in section 989 of the ITA) (or a nominee thereof); or |
(B) |
any other person or body listed in section 936(2) of the ITA (or a nominee thereof). |
“Tax Credit” means a credit against, relief or remission for, payment of, repayment of, or on account of, any Tax.
“Treaty Lender” means a Lender, which is not a QPP Lender, and which:
(i) |
is treated as a resident of a Treaty State for the purposes of the relevant Treaty; |
(ii) |
does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and |
(iii) |
meets all other conditions in the Treaty and/or under the laws of the United Kingdom (subject to the completion of any necessary procedural formalities) for full exemption from United Kingdom taxation on interest which relate to the Lender. |
“Treaty State” means a jurisdiction having a double taxation agreement (a “Treaty”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.
58
“UK Non-Bank Lender” means a Lender which is not an Original Lender and which gives a Tax Confirmation in the documentation which it executes on becoming a Party.
“Withdrawn Certificate” means a withdrawn certificate for the purposes of the QPP Regulations.
(b) |
Unless this Clause expressly provides to the contrary, in this Clause a reference to determines or determined means a determination made in the absolute discretion of the person making the determination. |
(c) |
For the avoidance of doubt, where a Lender is a partnership, that Lender shall only be a QPP Lender to the extent that each partner (or a person acting on their behalf) has delivered a QPP Certificate to the Company, provided that such QPP Certificate is not a Withdrawn Certificate or a Cancelled Certificate. A reference to a QPP Lender shall refer to a partner of that partnership as the context requires. |
12.2 |
Tax Gross-Up |
(a) |
All payments shall be made by each Obligor under each Finance Document without any Tax Deduction, unless a Tax Deduction is required by law. |
(b) |
The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is a change in the rate or the basis of any Tax Deduction), notify the Facility Agent accordingly. A Lender must notify the Facility Agent promptly on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification, it must notify the affected Parties promptly. |
(c) |
Subject to the limitations and exclusions herein, if a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor must be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required. |
(d) |
A payment shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax imposed by the United Kingdom, if on the date on which the payment falls due: |
(i) |
the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or |
(ii) |
the relevant Lender is a Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of “Qualifying Lender” and: |
(A) |
an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to the payment and that Lender has received from the Obligor making the payment or from the Company a certified copy of that Direction; and |
(B) |
the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or |
59
(iii) |
the relevant Lender is a Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of “Qualifying Lender” and: |
(A) |
the relevant Lender has not given a Tax Confirmation to the Company; and |
(B) |
the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Company, on the basis that the Tax Confirmation would have enabled the Company to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or |
(iv) |
the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (g) or (h) (as applicable) below. |
(e) |
If an Obligor is required by law to make a Tax Deduction, that Obligor must make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed by law and in the minimum amount required by law. |
(f) |
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction or payment must deliver to the relevant Facility Agent for the Finance Party entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) the appropriate payment has been made to the relevant Tax authority. |
(g)
(i) |
Subject to paragraph (ii) below, a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that relevant Obligor to obtain authorisation to make that payment without a Tax Deduction. |
(ii)(A)A Treaty Lender which is an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Part 1 of Schedule 1 (The Original Parties); and
(B) |
a Treaty Lender which is not an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the documentation which it executes on becoming a Party as a Lender, |
and, having done so, that Lender shall be under no obligation pursuant to sub-paragraph (i) above.
(h) |
If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (g)(ii) above and: |
(i) |
The Company has not made a Company DTTP Filing in respect of that Lender; or |
60
(ii) |
The Company has made a Company DTTP Filing in respect of that Lender but: |
(A) |
that Company DTTP Filing has been rejected by HM Revenue & Customs; |
(B) |
HM Revenue & Customs has not given the Company authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Company DTTP Filing; or |
(C) |
HM Revenue & Customs has given the Company authority to make payments to that Lender without a Tax Deduction but such authority has subsequently been revoked or expired, |
and in each case, the Company has notified that Lender in writing, that Lender and the Company shall co-operate in completing any additional procedural formalities necessary for the Company to obtain authorisation to make that payment without a Tax Deduction.
(i) |
If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph (g)(ii) above, the Company shall not make a Company DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender’s Commitment(s) or its participation in any Utilisation unless the Lender otherwise agrees. |
(j) |
The Company shall, promptly on making a Company DTTP Filing, deliver a copy of that Company DTTP Filing to the Facility Agent for delivery to the relevant Lender. |
(k) |
A UK Non-Bank Lender which is an Original Lender gives a Tax Confirmation to the Company by entering into this Agreement. |
(l) |
A UK Non-Bank Lender shall promptly notify the Company and the Facility Agent if there is any change in the position from that set out in the Tax Confirmation. |
(m) |
If the Company receives a notification from HM Revenue & Customs that a QPP Certificate given by a Lender has no effect, the Company shall promptly deliver a copy of that notification to that Lender. |
12.3 |
Tax Indemnity |
(a) |
Except as provided in paragraph (b) below, the Company shall, within five Business Days of demand by the Facility Agent, pay to a Protected Party an amount equal to the cost, loss or liability which that Protected Party determines will be or has been (directly or indirectly) incurred for or on account of Tax by that Protected Party in respect of a Finance Document. |
(b) |
Paragraph (a) above does not apply: |
(i) |
with respect to any Tax assessed on a Finance Party: |
(A) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or |
(B) |
under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction, |
61
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
(ii) |
if and to the extent that a cost, loss or liability: |
(A) |
is compensated for by an increased payment under Clause 12.2 (Tax Gross-Up); or |
(B) |
would have been compensated for by an increased payment under Clause 12.2 (Tax Gross-Up) but was not so compensated solely because one of the exclusions in paragraph (d) of Clause 12.2 (Tax Gross-Up) applied; or |
(C) |
is in respect of an amount of (i) stamp duty, registration or other similar Tax or (ii) VAT (which shall be dealt with in Clause 12.6 (Stamp Taxes) and Clause 12.7 (VAT) respectively); or |
(D) |
relates to a FATCA Deduction required to be made by a Party. |
(c) |
A Protected Party making, or intending to make, a claim under paragraph (a) above must notify the Facility Agent promptly of the event which will give, or has given, rise to the claim, following which the Facility Agent must notify the Company promptly. |
(d) |
A Protected Party must, on receiving a payment from an Obligor under this Clause 12.3 (Tax Indemnity), notify the Facility Agent promptly. |
12.4 |
Tax Credit |
If an Obligor makes a Tax Payment and the relevant Finance Party determines that:
(a) |
a Tax Credit is attributable to: |
(i) |
an increased payment of which that Tax Payment forms part; or |
(ii) |
that Tax Payment; or |
(iii) |
a Tax Deduction in consequence of which that Tax Payment was required; and |
(b) |
that Finance Party has obtained and utilised that Tax Credit, |
the Finance Party must pay an amount to the relevant Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.
12.5 |
Lender status confirmation |
Each New Lender or Increase Lender shall indicate, in the documentation which it executes on becoming such a Lender, and for the benefit of the Facility Agent and without liability to any Obligor, which of the following categories it falls in:
(a) |
not a Qualifying Lender; |
(b) |
a Qualifying Lender (other than a Treaty Lender or a QPP Lender); or |
(c) |
a Treaty Lender; or |
(d) |
a QPP Lender. |
If such a Lender fails to indicate its status in accordance with this Clause 12.5 then that Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Facility Agent which category applies (and the Facility Agent, upon receipt of such notification, shall inform the Company).
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For the avoidance of doubt, the documentation which a New Lender or Increase Lender executes on becoming such a Lender shall not be invalidated by any failure of a Lender to comply with this Clause12.5.
12.6 |
Stamp Taxes |
The Company shall pay and, within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability that Secured Party incurs in relation to any stamp duty, registration and other similar Taxes payable in respect of any Finance Document, save in respect of a transfer, assignment, sub-participation, subcontract or derivative transaction (which transfers any discretion with regards to the exercise of any voting rights) by a Lender of any of its rights and/or obligations under a Finance Document (except where such transfer, assignment, sub-participation, subcontract or derivative transaction (which transfers any discretion with regards to the exercise of any voting rights) is made pursuant to Clause 15 (Mitigation by the Lenders) or at the request of an Obligor).
12.7 |
VAT |
(a) |
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes are deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply or supplies made by any Finance Party to any Party under a Finance Document, and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying the consideration for such supply or supplies) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party). |
(b) |
If VAT is or becomes chargeable on any supply made by any Finance Party (the “Supplier”) to any other Party (the “Recipient”) under a Finance Document, and any Party other than the Recipient (the “Relevant Party”) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration): |
(i) |
(where the Supplier is the person required to account to the relevant tax authority for the VAT), the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of such VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and |
(ii) |
(where the Recipient is the person required to account to the relevant tax authority for the VAT), the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT. |
(c) |
Where VAT is or becomes chargeable in Nigeria on any supply made by the Supplier to the Recipient under a Finance Document, and the Recipient is required by law to withhold, remit and make returns on the VAT to the relevant Tax authority, the |
63
Recipient shall do so on or before the due date for the remittance or making the returns, and shall promptly provide the Supplier evidence of the Recipient’s compliance.
(d) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party must reimburse and indemnify (as the case may be) the Finance Party against any VAT incurred by the Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority. |
(e) |
Any reference in this Clause 12.7 to any Party will, at any time when that Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the VAT grouping rules (provided for in sections 43 to 43D of the Value Added Tax Act 1994, Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction which is not a member state of the European Union or the United Kingdom) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be). |
(f) |
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply. |
12.8 |
FATCA Information |
(a) |
Subject to paragraph (c) below, each Party must, within ten Business Days of a reasonable request by another Party: |
(i) |
confirm to that other Party whether it is: |
(A) |
a FATCA Exempt Party; or |
(B) |
not a FATCA Exempt Party; |
(ii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party requests to enable that other Party to comply with FATCA; and |
(iii) |
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime. |
(b) |
If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be, a FATCA Exempt Party, that Party must notify that other Party reasonably promptly. |
64
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of: |
(i) |
any law or regulation; |
(ii) |
any fiduciary duty; or |
(iii) |
any duty of confidentiality. |
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information. |
12.9 |
FATCA Deduction |
(a) |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction. |
(b) |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Company and the Facility Agent, and the Facility Agent shall notify the other Finance Parties. |
13. |
Increased Costs |
13.1 |
Definitions |
In this Agreement:
“Basel III” means:
(a) |
the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated; |
(b) |
the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and |
(c) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”. |
65
“Change in Law” means the occurrence, after the date of this Agreement (or with respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the following:
(a) |
the adoption or introduction of any law, rule, regulation or treaty; |
(b) |
any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof; |
(c) |
the making or issuance of any binding guideline or binding directive by any governmental authority; provided that, for purposes of this Agreement, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives in connection therewith are deemed to have gone into effect and adopted after the date of this Agreement; |
(d) |
any change in Basel III or CRD IV; or |
(e) |
compliance with any law or regulation made after the date of this Agreement. |
“CRD IV” means:
(a) |
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and |
(b) |
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms. |
“Increased Costs” means:
(a) |
a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital; |
(b) |
an additional or increased cost; or |
(c) |
a reduction of any amount due and payable under any Finance Document, |
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into a Finance Document or funding or performing its obligations under any Finance Document.
13.2 |
Increased Costs |
Subject to Clause 13.4 (Exceptions) below, the Company shall, within three Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of any Change in Law.
13.3 |
Increased Costs Claims |
(a) |
A Finance Party intending to make a claim pursuant to Clause 13.2 (Increased Costs) must notify the Facility Agent of the circumstances giving rise to and the amount of the claim, following which the Facility Agent must promptly notify the Company. |
(b) |
Each Finance Party must, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate (giving reasonable details of the circumstances giving rise to such claim and the calculation of the Increased Cost provided that such Finance Party shall not be required to disclose any information where disclosure of such information would breach any law or regulation to which such Finance Party is subject) |
66
confirming the amount of its Increased Costs, a copy of which shall be provided to the Company.
13.4 |
Exceptions |
Clause 13.2 (Increased Costs) does not apply to the extent any Increased Cost is:
(a) |
attributable to a Tax Deduction required by law to be made by an Obligor; |
(b) |
attributable to a FATCA Deduction required to be made by a Party; |
(c) |
compensated for by Clause 12.3 (Tax Indemnity) (or would have been compensated for under Clause 12.3 (Tax Indemnity) but was not compensated for solely because any of the exclusions in paragraph (b) of Clause 12.3 (Tax Indemnity) applied); |
(d) |
in respect of an amount of (i) stamp duty, registration or other similar Tax or (ii) VAT (which shall be dealt with in Clause 12.6 (Stamp Taxes) and Clause 12.7 (VAT) respectively); |
(e) |
attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (or, if later, the date the relevant Finance Party becomes a Party to this Agreement) (“Basel II”) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates); |
(f) |
attributable to implementation, application or compliance with Basel III or CRD IV other than to the extent that the Basel III or CRD IV have been amended and such amendments are not contemplated as at the date of this Agreement; |
(g) |
attributable to the wilful breach by any Finance Party or its Affiliates of any law or regulation or the terms of any Finance Document; |
(h) |
attributable to a change (whether in the rate basis, timing or otherwise) of Tax on the overall net income of the Finance Party (or any Affiliate of it) making such claim or of the branch or office through which it lends the Loan; or |
(i) |
attributable to any penalty having been imposed by the relevant central bank or monetary or fiscal authority upon the Finance Party (or any Affiliate of it) making such claim by virtue of its having exceeded any country or sector borrowing limits or breached any directives imposed upon it; or |
(j) |
not notified to the Facility Agent or the Company. |
14. |
Other Indemnities |
14.1 |
Currency Indemnity |
(a) |
If any sum due from an Obligor under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of: |
(i) |
making or filing a claim or proof against that Obligor; or |
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings, |
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the Company shall as an independent obligation, within three Business Days of demand, indemnify each Secured Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.
(b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable. |
14.2 |
Other Indemnities |
(a) |
The Company shall within three Business Days of demand indemnify each Finance Party against any cost, loss or liability incurred by it as a result of: |
(i) |
the occurrence of any Event of Default; |
(ii) |
a failure by the Company to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability resulting from any distribution or redistribution of any amount among the Lenders under this Agreement; |
(iii) |
funding, or making arrangements to fund, its participation in a Loan requested in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or |
(iv) |
a Loan (or part of a Loan) not being prepaid in accordance with the Finance Documents. |
(b) |
The Company’s liability in each case includes any cost, loss or liability incurred on account of funds borrowed, contracted for or utilised to fund any Loan or any other amount payable under any Finance Document. |
14.3 |
Indemnity to the Facility Agent |
The Company shall indemnify the Facility Agent within three Business Days of demand against:
(a) |
any cost, loss or liability incurred by the Facility Agent (acting reasonably) as a result of: |
(i) |
investigating any event which the Facility Agent reasonably believes is a Default; |
(ii) |
acting or relying on any notice, request or instruction which the Facility Agent reasonably believes to be genuine, correct and appropriately authorised; or |
(iii) |
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; and |
(b) |
any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Facility Agent otherwise than by reason of the Facility Agent’s gross negligence or wilful misconduct (or, in the case of any cost, loss or liability arising pursuant to Clause 32.10 (Disruption to Payment Systems), notwithstanding the Facility Agent’s negligence, gross negligence or any other category of liability whatsoever, other than any claim based on the fraud of the Facility Agent in acting as Facility Agent under the Finance Documents). |
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14.4 |
Indemnity to the Security Agent |
(a) |
The Company must indemnify the Security Agent and each Receiver and Delegate within three Business Days of demand against any cost, loss or liability incurred by any of them as a result of: |
(i) |
any failure by the Company to comply with its obligations under Clause 17 (Costs and Expenses); |
(ii) |
acting or relying on any notice, request or instruction which the Security Agent, Receiver or Delegate reasonably believes to be genuine, correct and appropriately authorised; |
(iii) |
the taking, holding, protection or enforcement of the Security under the Security Documents; |
(iv) |
the exercise of any of the rights, powers, discretions and remedies vested in the Security Agent, Receiver or Delegate by the Finance Documents or by law; |
(v) |
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; |
(vi) |
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; |
(vii) |
acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Security Assets (otherwise, in each case, than by reason of the relevant Security Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct). |
(b) |
The Security Agent and each Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Security Assets in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.4 (Indemnity to the Security Agent) and Clause 17.3 (Enforcement Costs) and will have a lien on the Security under the Security Documents and the proceeds of enforcement of those Security for all moneys payable to it. |
(c) |
The rights conferred by this Clause 14.4 shall survive the termination of this Agreement and shall continue notwithstanding any disposal of any asset subject to the Finance Documents and are without prejudice to any right to indemnity by law given to trustees generally and to any provision of the Finance Documents entitling the Security Agent or any other person to an indemnity in respect of, and/or reimbursement of, any liabilities, costs or expenses incurred or suffered by it in connection with any of the Finance Documents or the performance of any duties under any of the Finance Documents. |
15. |
Mitigation by the Lenders |
15.1 |
Mitigation |
(a) |
Each Finance Party must, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in the Facility ceasing to be available or any amount becoming payable under or pursuant to, or being cancelled pursuant to, any of Clause 7.1 (Mandatory Prepayment – Illegality), Clause 12 (Tax Gross Up and Indemnities), Clause 13 (Increased Costs) including without limitation transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office. |
69
(b) |
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents. |
15.2 |
Limitation of Liability |
(a) |
The Company must indemnify each Finance Party promptly for any cost, loss or liability reasonably incurred by that Finance Party as a result of steps taken by it under this Clause. |
(b) |
A Finance Party is not obliged to take any steps under this Clause if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it. |
16. |
Guarantee and Indemnity |
16.1 |
Guarantee and Indemnity |
Each Facility Guarantor irrevocably and unconditionally jointly and severally:
(a) |
guarantees to each Finance Party punctual performance by the Company of all of the Company’s payment obligations under the Finance Documents; |
(b) |
undertakes with each Finance Party that whenever the Company does not pay any amount when due under or in connection with any Finance Document, that Facility Guarantor must immediately on demand pay that amount as if it were the principal obligor in respect of that amount; and |
(c) |
agrees with each Finance Party that if any obligation guaranteed by that Facility Guarantor is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability that Finance Party incurs as a result of the Company not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by the Company under any Finance Document on the date when it would have been due. The amount payable by a Facility Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause if the amount claimed had been recoverable on the basis of a guarantee. |
16.2 |
Continuing Guarantee |
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.
16.3 |
Reinstatement |
If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Facility Guarantor under this Clause will continue or be reinstated as if the discharge, release or arrangement had not occurred.
16.4 |
Facility Guarantor Intent |
Without prejudice to the generality of Clause 16.5 (Waiver of Defences), each Facility Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents for the purposes of or in connection with any of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.
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16.5 |
Waiver of Defences |
The obligations of each Facility Guarantor under this Clause will not be affected by an act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause including (without limitation and whether or not known to it or any Finance Party):
(a) |
any time, waiver or consent granted to, or composition with, any Obligor or other person; |
(b) |
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; |
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person; |
(d) |
any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; |
(e) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person; |
(f) |
any amendment, novation, supplement, extension (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security; |
(g) |
any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Finance Document or any other document or security; or |
(h) |
any insolvency, resolution or similar proceedings. |
16.6 |
Immediate Recourse |
(a) |
Each Facility Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Facility Guarantor under this Clause. |
(b) |
This waiver applies irrespective of any law or any provision of a Finance Document to the contrary. |
16.7 |
Appropriations |
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce them in such manner and order as it sees fit (whether against those |
71
amounts or otherwise) and no Facility Guarantor will be entitled to the benefit of such moneys, security or rights; and
(b) |
hold in an interest-bearing suspense account any moneys received from any Facility Guarantor or on account of any Facility Guarantor’s liability under this Clause. |
16.8 |
Deferral of Facility Guarantors’ Rights |
(a) |
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full or unless the Facility Agent otherwise directs, no Facility Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising under this Clause: |
(i) |
to be indemnified by an Obligor; |
(ii) |
to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents; |
(iii) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party; |
(iv) |
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Facility Guarantor has given a guarantee, undertaking or indemnity under this Clause; |
(v) |
to exercise any right of set-off against any Obligor; and/or |
(vi) |
to claim or prove as a creditor of any Obligor in competition with any Finance Party. |
(b) |
If a Facility Guarantor receives any benefit, payment or distribution in relation to such rights it must hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and must promptly pay or transfer them to the Facility Agent or as the Facility Agent may direct for application in accordance with Clause 32 (Payment Mechanics). |
16.9 |
Release of Facility Guarantors’ Right of Contribution |
If any Facility Guarantor (a “Retiring Guarantor”) ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:
(a) |
that Retiring Guarantor is released by each other Facility Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Facility Guarantor arising by reason of the performance by any other Facility Guarantor of its obligations under the Finance Documents; and |
(b) |
each other Facility Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor. |
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16.10 |
Additional Security |
This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.
16.11 |
Limitations |
(a) |
This guarantee does not apply to any liability to the extent that it would result in this guarantee constituting unlawful financial assistance within the meaning of any applicable provisions under the laws of the jurisdiction of incorporation of the relevant Facility Guarantor. |
(b) |
The obligations of any Facility Guarantor are subject to any limitations set out in the Accession Letter executed by that Facility Guarantor. |
(c) |
Without prejudice to the generality of paragraphs (a) and (b) above any guarantee and/or indemnity under this Clause given by a Facility Guarantor incorporated in The Netherlands does not apply to any liability to the extent that it would result in such guarantee and/or indemnity constituting unlawful financial assistance within the meaning of any applicable provisions under Dutch law. |
17. |
Costs and Expenses |
17.1 |
Transaction Expenses |
The Company shall within ten Business Days of demand pay the Facility Agent, the Arranger and the Security Agent (and, in the case of the Security Agent, any Receiver or Delegate) the amount of all costs and expenses including, but not limited to, legal fees (subject to caps (if any)) properly incurred by any of them in relation to the arrangement, negotiation, preparation, printing, execution and perfection of:
(a) |
this Agreement and any other documents referred to in this Agreement or in a Security Document; and |
(b) |
any other Finance Documents executed after the date of this Agreement. |
17.2 |
Amendment Costs |
If an Obligor requests an amendment, waiver or consent or any amendment or waiver is contemplated or agreed pursuant to Clause 38.4 (Changes to Reference Rates), the Company shall, within ten Business Days of demand, reimburse each of the Facility Agent and the Security Agent for the amount of all agreed third-party costs and expenses (including, but not limited to, legal fees) properly incurred by the Facility Agent and the Security Agent (and, in the case of the Security Agent, by any Receiver or Delegate) in responding to, evaluating, negotiating or complying with that request or requirement.
17.3 |
Enforcement Costs |
The Company shall, within ten Business Days of demand, pay to each Secured Party the amount of all costs and expenses (including, but not limited to, legal fees) incurred by it in connection with the enforcement of or the preservation of any rights under any Finance Document and the Security created under the Security Documents and any proceedings instituted by or against the Security Agent as a consequence of taking or holding the Security created under the Security Documents or enforcing these rights.
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18. |
Representations |
18.1 |
Representations |
(a) |
The representations and warranties set out in this Clause (other than the representation and warranty set out in paragraph (b) of Clause 18.25 (Insolvency)) are made by the Company to each Finance Party on the dates set out in Clause 18.26 (Times for Making Representations). |
(b) |
Each Guarantor makes the representations and warranties set out in paragraphs (a) and (b) of Clause 18.2 (Status), Clause 18.3 (Binding Obligations), Clause 18.4 (Non-Conflict with other Obligations), Clause 18.5 (Power and Authority), Clause 18.6 (Validity and Admissibility in Evidence), Clause 18.7 (Governing Law and Enforcement), Clause 18.8 (Deduction of Tax), Clause 18.9 (No Filing or Stamp Taxes), paragraphs (a) and (c) of Clause 18.10 (No Default), Paragraph (a) of Clause 18.14 (Pari Passu Ranking), Clause 18.15 (Good Title), Clause 18.17 (Security and Financial Indebtedness), Clause 18.18 (No Proceedings Pending or Threatened), Clause 18.19 (No Breach of Laws), Clause 18.20 (Sanctions), Clause 18.21 (Anti-Bribery and Corruption Laws), Clause 18.23 (No Immunity), Clause 18.24 (No Adverse Consequences) and paragraph (b) of Clause 18.25 (Insolvency) on the date set out in paragraph (b) of Clause 18.26 (Times for Making Representations). |
18.2 |
Status |
(a) |
It is a limited liability company, duly incorporated and validly existing under the law of its jurisdiction of incorporation (or, in the case of the Company it is an exempted company registered by way of continuation with limited liability, validly existing and in good standing under the laws of the Cayman Islands). |
(b) |
It has the power to own its assets and carry on its business as it is being conducted. |
(c) |
Each Material Subsidiary is a limited liability company, limited liability partnership or corporation, duly incorporated and validly existing under the laws of its jurisdiction of incorporation, and each Material Subsidiary has the power to own its assets and carry on its business as it is being conducted. |
18.3 |
Binding Obligations |
Subject to the Legal Reservations and, in the case of the Security Documents, the Perfection Requirements:
(a) |
its obligations under the Finance Documents to which it is a party are legal, valid, binding and enforceable obligations; and |
(b) |
(without limiting the generality of paragraph (a) above), each of the Security Documents to which it is party creates the security interests which that Security Document purports to create and those security interests are valid and effective. |
18.4 |
Non-Conflict with other Obligations |
The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not conflict with:
(a) |
any law or regulation applicable to it; |
(b) |
its constitutional documents; or |
(c) |
any agreement or instrument binding on it or any of its assets, to an extent which has or would reasonably be expected to have a Material Adverse Effect. |
74
18.5 |
Power and Authority |
It has the power to enter into and perform, and has taken all necessary action to authorise its entry into and performance of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.
18.6 |
Validity and Admissibility in Evidence |
All Authorisations required:
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and |
(b) |
to make the Finance Documents to which it is a party, subject to the Legal Reservations and, in the case of the Security Documents, the Perfection Requirements, admissible in evidence in its Relevant Jurisdictions, |
have been obtained or effected and are, subject to the Legal Reservations and, in the case of the Security Documents, Perfection Requirements, in full force and effect other than in respect of stamping and registration of the Security Documents.
18.7 |
Governing Law and Enforcement |
(a) |
Subject to the Legal Reservations, any: |
(i) |
submission under a Finance Document to the jurisdiction of particular courts or to arbitration (as applicable); and |
(ii) |
agreement as to the governing law of a Finance Document, |
is legal, valid and binding under the laws of its Relevant Jurisdictions.
(b) |
Subject to the Legal Reservations, any arbitral award or judgment obtained in the courts to whose jurisdiction it submitted, in each case, in relation to a Finance Document will be recognised and enforced by the courts of its Relevant Jurisdictions. |
18.8 |
Deduction of Tax |
The Company is not required to make any Tax Deduction from any payment it may make under any Finance Document to a Lender which is:
(a) |
a Qualifying Lender: |
(i) |
falling within paragraph (i)(A) of the definition of “Qualifying Lender”; or |
(ii) |
except where a Direction has been given under section 931 of the ITA in relation to the payment concerned, falling within paragraph (i)(B) of the definition of “Qualifying Lender”; or |
(iii) |
that is a QPP Lender; or |
(b) |
a Treaty Lender and the payment is one specified in a direction given by the Commissioners of HM Revenue & Customs under Regulation 2 of the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488), |
and no Guarantor is required to make any such Tax Deduction from any such payment to any Lender, other than the obligation of the Nigeria Obligors to deduct withholding tax on account of Nigerian withholding tax on interest from interest payments under this Agreement.
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18.9 |
No Filing or Stamp Taxes |
Under the laws of its Relevant Jurisdictions it is not necessary that any stamp, registration, notarial or similar Taxes or fees be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents except for:
(a) |
any stamping, filing, recording or enrolling or any tax or fee payable in connection with assignments or transfers made pursuant to Clause 25 (Changes to the Lenders) or, as the case may be, to the enforcement of the Security created under the Security Documents and, subject to the Perfection Requirements, it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction, except for any filing, recording or enrolling which is referred to in any Legal Opinion and which will be made within the time period allowed by applicable law or the relevant Finance Document; |
(b) |
any stamping, filing, recording or enrolling or any tax or fee payable in connection with the Security created under the Security Documents; |
(c) |
any stamping, filing, recording or enrolling or any tax or fee payable in connection with the Finance Documents (other than the Security Documents) in Nigeria, to the extent any person incorporated or established in Nigeria is a party to that Finance Document; and |
(d) |
any stamping, filing, recording or enrolling or any tax or fee payable in connection with any Finance Documents or Security Document that is executed in or brought to the Cayman Islands or produced before a court in the Cayman Islands. |
18.10 |
No Default |
(a) |
No Event of Default has occurred (or, when this representation is made on the date of this Agreement, no Default) and is continuing or would reasonably be expected to result from any Loan or the entry into or the performance of, or any transaction contemplated by, any Finance Document. |
(b) |
No other event has occurred and is continuing which constitutes a default (howsoever described or defined) under any agreement to which it is party and which would be reasonably expected to have a Material Adverse Effect. |
(c) |
In the case of a Guarantor only, no Default would (when this representation is made by a Guarantor on the date of this Agreement or (as applicable) the Guarantor Accession Date applicable to it) reasonably be expected to result from the entry by that Guarantor into, or the performance by that Guarantor of, or any transaction of that Guarantor contemplated by, any Finance Document. |
18.11 |
No Material Subsidiary Event of Default |
No Material Subsidiary Event of Default is continuing.
18.12 |
Financial Statements |
(a) |
Its audited financial statements most recently delivered to the Facility Agent (which, at the date of this Agreement, are its Original Financial Statements) were prepared in accordance with IFRS, consistently applied. |
(b) |
There has been no material adverse change in its business or financial condition (consolidated if applicable) since the date to which its Original Financial Statements were drawn up. |
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18.13 |
Pari Passu Ranking |
(a) |
Its payment obligations under the Finance Documents rank at least pari passu in right and priority of payment with all its other present and future unsecured and unsubordinated indebtedness (actual or contingent) except indebtedness preferred by laws of general application. |
(b) |
Subject to Legal Reservations and Perfection Requirements, any Security has or will have the ranking in priority which it is expressed to have in the Security Documents. |
18.14 |
Good Title |
It has good, valid and marketable title to, or valid leases or licences of, or is otherwise entitled to use, all assets necessary for the conduct of the business as it is presently being conducted, where failure to do so would be reasonably expected to have a Material Adverse Effect.
18.15 |
Group Structure Chart and Subsidiaries |
The Group Structure Chart accurately records in all material respects (other than any nominal shareholdings required by law) the structure of the Company and its operating Subsidiaries as at the date of this Agreement.
18.16 |
Security and Financial Indebtedness |
(a) |
No Security or Quasi-Security exists over all or any of the present or future assets of the Company other than as permitted or not prohibited by the Finance Documents. |
(b) |
No Security or Quasi-Security exists over all or any of the present or future assets of any Material Subsidiary other than: |
(i) |
Permitted Security; or |
(ii) |
as permitted or not prohibited by the terms of the relevant Existing Material Subsidiary Debt Facility. |
(c) |
Neither the Company nor any Material Subsidiary has any Financial Indebtedness outstanding other than as permitted or not prohibited by the Finance Documents. |
18.17 |
No Proceedings Pending or Threatened |
No litigation, arbitration or administrative proceedings or investigation of or before any court, arbitral body or agency which, if adversely determined, would be reasonably likely to have a Material Adverse Effect has been started or, to the best of its knowledge, is threatened, has been started or is pending against it or any of its Material Subsidiaries.
18.18 |
No Breach of Laws |
Neither it nor any Material Subsidiary has breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect.
18.19 |
Sanctions |
(a) |
Neither the Company, its Subsidiaries nor its joint venture entities, nor any of their respective directors, officers or employees nor, to the knowledge of the Company, any persons acting on any of their behalf: |
(i) |
is a Restricted Party; |
(ii) |
has received notice of any claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions Authority; |
77
(iii) |
has been engaged in any transaction that evades or avoids, or has the purpose of evading or avoiding, or breaches or attempts to breach, directly or indirectly, any Sanctions; or |
(iv) |
has been engaged, directly or indirectly, in any trade, business or other activities with or for the benefit of any Restricted Party or which is in breach of any Sanctions. |
(b) |
Subject to paragraph (c) below, any representation made or deemed to be made pursuant to paragraph (a) above shall not apply for the benefit of a Finance Party to the extent that giving, complying with or receiving the benefit of (as applicable) such representation results in a breach of any applicable Blocking Law. |
(c) |
In relation to each Finance Party that notifies the Facility Agent and the Company to this effect, any provision of or representation made or deemed to be made pursuant to paragraph (a) that results in that Finance Party breaching any applicable Blocking Law will continue to apply for the benefit of that Finance Party notwithstanding such breach, and accordingly paragraph (b) will not apply to that Finance Party to this degree. |
18.20 |
Anti-Bribery and Corruption Laws |
(a) |
The Company and each of its Subsidiaries has implemented policies and procedures designed to promote and achieve compliance by it and its respective directors, officers and employees with Anti- Corruption Laws. |
(b) |
To the best of its knowledge, the Company and each of its Subsidiaries has conducted its businesses in compliance with Anti-Corruption Laws. |
18.21 |
Environmental Compliance |
(a) |
It is in compliance with Clause 22.6 (Environmental Compliance) and to the best of its knowledge and belief (having made due and careful enquiry) no circumstances have occurred which would prevent such compliance in a manner or to an extent which would be reasonably likely to have a Material Adverse Effect. |
(b) |
No Environmental Claim has been commenced or (to the best of the Company’s knowledge and belief (having made due and careful enquiry)) is threatened against the Company where that claim would be reasonably likely, if adversely determined, to have a Material Adverse Effect or a material adverse impact on the implementation or operation of the business of the Company in accordance with the Performance Standards. |
18.22 |
No Immunity |
In any proceedings taken in its jurisdiction of incorporation in relation to the Finance Documents to which it is a party, it will not be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process.
18.23 |
No Adverse Consequences |
(a) |
It is not necessary under the laws of its jurisdiction of incorporation: |
(i) |
in order to enable any Finance Party that is a Party as at the date of this Agreement to enforce its rights under any Finance Document; or |
(ii) |
by reason of the entry into of any Finance Document in force as at the date of this Agreement or the performance by it of its obligations under any Finance Document, |
78
that any Finance Party that is a Party as at the date of this Agreement should be licensed, qualified or otherwise entitled to carry on business in that jurisdiction.
(b) |
No Finance Party that is a Party as at the date of this Agreement is or will be deemed to be resident, domiciled or carrying on business in that jurisdiction by reason only of the entry into, performance and/or enforcement of any Finance Document in force as at the date of this Agreement. |
18.24 |
Insolvency |
(a) |
No: |
(i) |
corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 23.9 (Insolvency Proceedings); or |
(ii) |
creditors’ process described in Clause 23.10 (Creditors’ Process or Expropriation), |
has been taken or, to its knowledge having made due and careful enquiry, is threatened in relation to it or any Material Subsidiary and none of the circumstances described in Clause 23.8 (Insolvency) applies to it or any Material Subsidiary.
(b) |
No creditors’ process described in Clause 23.10 (Creditors’ Process or Expropriation) has been taken in respect of it nor, to its knowledge having made due and careful enquiry, is threatened in relation to it. |
18.25 |
Times for Making Representations |
(a) |
The representations and warranties set out in this Clause are made by the Company on the date of this Agreement and on the date of the Nigeria Guarantee. |
(b) |
Each Guarantor shall make the representations and warranties listed in paragraph (b) of Clause 18.1 (Representations): |
(i) |
in the case of an Original Facility Guarantor, on the date of this Agreement; |
(ii) |
in the case of an Original Nigeria Guarantor, on the date of the Nigeria Guarantee; or |
(iii) |
in the case of an Additional Guarantor, on the Guarantor Accession Date applicable to that Additional Guarantor. |
(c) |
Each Obligor shall be deemed to repeat the Repeating Representations applicable to it on the date of each Utilisation Request, on each Utilisation Date and on the first day of each Interest Period. |
(d) |
The representation and warranty set out in paragraph (b) of Clause 18.14 (Pari Passu Ranking) is deemed to be made at the time a Security Document is entered into. |
(e) |
The representations and warranties set out in paragraph (a) of Clause 18.13 (Financial Statements) in respect of each set of audited financial statements delivered pursuant to Clause 19.1 (Financial Statements) shall only be made once in respect of each set of audited financial statements on the date such Financial Statements are delivered. |
(f) |
Each representation or warranty deemed to be made after the date of this Agreement shall be deemed to be made by reference to the facts and circumstances existing at the date the representation or warranty is deemed to be made. |
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19. |
Information Undertakings |
19.1 |
Financial Statements |
The Company must supply to the Facility Agent in sufficient copies for all the Lenders:
(a) |
as soon as the same become available, but in any event within 120 days after the end of each of its Financial Years, its audited consolidated financial statements for that Financial Year (the “Annual Financial Statements”); and |
(b) |
as soon as the same become available, but in any event within 60 days after the end of each of the first three Financial Quarters of the Financial Year, its consolidated financial statements for the relevant Financial Quarter (the “Quarterly Financial Statements”). |
19.2 |
Compliance Certificate |
(a) |
The Company must supply to the Facility Agent a duly completed Compliance Certificate with each set of its financial statements delivered to the Facility Agent under paragraphs (a) or (b) of Clause 19.1 (Financial Statements). |
(b) |
A Compliance Certificate must be signed by an officer or a director of the Company. |
(c) |
Each Compliance Certificate must specify that no Default or Material Subsidiary Event of Default is continuing, and if this statement cannot be made the certificate should identify any Default that is continuing and the steps, if any, being taken to remedy it. |
19.3 |
Requirements as to Financial Statements |
(a) |
Each set of financial statements delivered pursuant to Clause 19.1 (Financial Statements): |
(i) |
gives (if audited) a true and fair view of, or (if unaudited) fairly represents, the financial condition (consolidated or otherwise) of the Company as at the date to which those financial statements were drawn up; and |
(ii) |
shall be prepared using IFRS, accounting practices and financial reference periods consistent with those applied in the preparation of the Financial Model, unless, in relation to any set of financial statements, the Company notifies the Facility Agent that there has been a change in IFRS or the accounting practices and the Company delivers to the Facility Agent: |
(A) |
a description of any change necessary for those financial statements to reflect the IFRS or accounting practices upon which the Financial Model was prepared; and |
(B) |
sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether Clause 20 (Financial Covenants) has been complied with and to make an accurate comparison between the financial position indicated in those financial statements and the Financial Model. |
(b) |
Any reference in this Agreement to any financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Financial Model was prepared. |
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19.4 |
Information – Miscellaneous |
The Company must supply to the Facility Agent in sufficient copies for all the Lenders:
(a) |
at the same time as they are dispatched, copies of all documents required by law to be dispatched by the Company to its creditors generally; |
(b) |
the details of any litigation, arbitration or administrative proceedings or investigations which are current, threatened or pending against any member of the Group and which have or might, if adversely determined, have a Material Adverse Effect; |
(c) |
promptly but subject in any event to any applicable duty of confidentiality owed by a member of the Group to any person other than a member of the Group, the details of: |
(i) |
any amendment made or waiver granted in respect of the principal amount or tenor of, or financial covenants applicable under, any Existing Material Subsidiary Debt Facility or any Refinancing Facility; |
(ii) |
any Refinancing Facility; |
(iii) |
any Bridge Facility; and |
(iv) |
any debt financing envisaged pursuant to Clause 22.23(b) (Distributions); and |
(d) |
upon request, such other information relating to the assets (which are as stated in the Company’s balance sheet from time to time), financial condition, business or operation of the Company, as the Facility Agent or any other Lender through the Facility Agent may from time to time reasonably request to monitor the compliance of the obligations of the Company. |
19.5 |
Information – Senior Notes |
While the Senior Notes remain outstanding, the Company shall procure that each issuer of the Senior Notes sends to the Facility Agent copies of the financial statements sent to the holders of the Senior Notes (or the trustee on their behalf) pursuant to section 4.03(a) of each Senior Notes Indenture.
19.6 |
Information – listing rules |
Notwithstanding any provision of the Finance Documents requiring an Obligor to provide (or procure that a member of the Group provides) any information relating to an Obligor or the Group to any Finance Party (each such obligation, an “Information Obligation”), the Parties agree that, all Information Obligations shall be subject to legal regulatory and exchange requirements applicable to the Obligors in any relevant jurisdiction and no Default shall arise in relation to any Information Obligation as a result of any Obligor or member of the Group not providing information to any Finance Party where such provision would directly result in a breach of any law, regulation or listing rule which is applicable to that Obligor or member of the Group.
19.7 |
Notification of Default |
(a) |
The Company must notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) or any Material Subsidiary Event of Default promptly on becoming aware of its occurrence. |
(b) |
Promptly on request by the Facility Agent, the Company must supply to the Facility Agent a certificate, signed by a director or senior officer on its behalf, certifying that no Default is continuing (or, if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it). The Facility Agent must notify the Lenders of |
81
the occurrence of an Event of Default promptly upon becoming aware of it (whether by way of notification from the Company or otherwise).
(c) |
If any Lender (acting reasonably) suspects that a Material Subsidiary Event of Default has occurred, that Lender may notify the Facility Agent in writing to, and the Facility Agent shall, request the Company to confirm whether or not a Material Subsidiary Event of Default has occurred and is continuing. The Company must, promptly following receipt of any such request, supply to the Facility Agent a certificate, signed by a director or senior officer on its behalf, confirming that no Material Subsidiary Event of Default is continuing (or, if a Material Subsidiary Event of Default is continuing, specifying the relevant default and the steps, if any, being taken to remedy it). |
19.8 |
Use of Websites |
(a) |
The Company may satisfy its obligation under this Agreement to deliver any information by posting such information onto an electronic website designated by the Company and the Facility Agent (a “Designated Website”). |
(b) |
The Facility Agent must supply each Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Company and the Facility Agent. |
(c) |
The Company must promptly on becoming aware of its occurrence notify the Facility Agent if: |
(i) |
the Designated Website cannot be accessed due to technical failure; |
(ii) |
the password specifications for the Designated Website change; |
(iii) |
any new information which is required to be provided under this Agreement is posted onto the Designated Website; |
(iv) |
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or |
(v) |
the Company becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software. |
(d) |
If the Company notifies the Facility Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Company under this Agreement after the date of that notice must be supplied in paper or alternative electronic form unless and until the Facility Agent (acting reasonably) is satisfied that the circumstances giving rise to the notification are no longer continuing. |
19.9 |
“Know Your Customer” Checks |
(a) |
Subject to paragraph (b) below, the Company must, promptly on request by any Finance Party, supply any documentation or other evidence requested by that Finance Party (whether for itself, or on behalf of any other Finance Party or any prospective new Lender) to enable a Finance Party or prospective new Lender to carry out and be satisfied with the results of any “know your customer” checks or other similar checks required under any applicable law or regulation in connection with the transactions contemplated by the Finance Documents. |
82
(b) |
The Company is only required to supply any information under paragraph (a) above, if the information is not already available to the relevant Finance Party and the requirement arises as a result of: |
(i) |
the introduction of, or any change in (or in the interpretation, administration or application of), any law or regulation made after the date of this Agreement; |
(ii) |
any change in the status of the Company after the date of this Agreement; or |
(iii) |
a proposed assignment or transfer by a Lender of any of its rights and/or obligations under any Finance Document to a person that is not a Lender before that assignment or transfer. |
(c) |
Each Lender must, promptly on request by the Facility Agent supply, or procure the supply of, any documentation or other evidence reasonably requested by the Facility Agent (for itself) to enable the Facility Agent to carry out and be satisfied with the results of any “know your customer” checks or other similar checks required under any applicable law or regulation in connection with the transactions contemplated by the Finance Documents. |
20. |
Financial Covenants |
20.1 |
Financial Definitions |
“EBITDA” means, in respect of any period for any person, the Net Income for such period, excluding:
(a) |
total Finance Costs; |
(b) |
total Finance Income; |
(c) |
total income tax (expense)/benefit as stated in the statement of profit or loss for the period; |
(d) |
all depreciation and amortisation expense of that person for such period; |
(e) |
any gains or losses from sales of assets other than inventory sold in the ordinary course of the business; |
(f) |
any impairment of property, plant and equipment and prepaid land rent, or WHT receivable; |
(g) |
any Exceptional Items; |
(h) |
share-based payment transactions; |
(i) |
any net gain or loss from the receipt of any insurance proceeds; |
(j) |
and other non-operating income and expenses; and |
(k) |
minority interest income and expenses, |
in each case, to the extent added, deducted or taken into account, as the case may be, for the purposes of determining the Net Income.
“Exceptional Items” means items of income and expense that are sufficiently large and unusual due to the significance of their nature, size or incidence of occurrence as to distort comparisons from one period to the next (including, without limitation, any Transaction Costs that are sufficiently large and unusual due to the significance of their nature, size or incidence of occurrence as to distort comparisons from one period to the next).
83
“Finance Costs” means finance costs as presented in the Financial Statements of the Group as determined in accordance with IFRS.
“Finance Income” means finance income as presented in the Financial Statements of the Group as determined in accordance with IFRS.
“Interest Cover Ratio” means, in respect of any Relevant Period, the ratio of EBITDA of the Group in respect of that Relevant Period to Net Cash Finance Interest Adjusted For Leases in respect of that Relevant Period.
“Leverage Ratio” means, in respect of any Relevant Period, the ratio of Net Financial Indebtedness on the last day of that Relevant Period to EBITDA of the Group in respect of that Relevant Period.
“Net Cash Finance Interest Adjusted For Leases” means, for any period:
(a) |
the total cash interest or finance costs paid on Financial Indebtedness of the Group (excluding the Transaction Costs), as presented in the cash flow statements from the most recent Financial Statements of the Group, as determined in accordance with IFRS; plus |
(b) |
without duplication the interest expense on the Lease obligations of the Group for such period; less |
(c) |
the total cash finance income received by the Group as presented in the cash flow statements from the most recent Financial Statements of the Group resulting from investments and bank deposits in that period. |
“Net Financial Indebtedness” means, in respect of any Relevant Period, the Financial Indebtedness of the Group on the last day of that Relevant Period (other than Financial Indebtedness in respect of hedging agreements or other treasury transactions, in each case to the extent permitted by the terms of this Agreement, except for any crystallised exposures under such hedging agreements or treasury transactions or Financial Indebtedness arising in respect of any terminated hedging agreements or other treasury transactions) less the aggregate amount of Cash (including, for the avoidance of doubt, any cash provided as margin in connection with any terminated hedging agreement or other treasury transaction which has not been applied in paying any relevant termination payment) and Cash Equivalent Investments held by the Group during that Relevant Period.
“Net Income” means, in respect of any Relevant Period, stated as the ‘Profit/(loss)’ for the period in the statement of profit or loss in the Financial Statements of the Group as determined in accordance with IFRS.
“Quarter Date” means each of 31 March, 30 June, 30 September and 31 December.
“Relevant Period” means each period of 12 Months ending on or about the last day of each Financial Quarter.
“Transaction Costs” means all arm’s length, fair market and bona fide fees, commissions, costs and expenses, and stamp, registration and other Taxes incurred by any member of the Group (including any member of the Nigeria Group) in connection with:
(a) |
the Facility, the Finance Documents, any Permitted Financial Indebtedness or any Permitted Acquisition; or |
(b) |
the Nigeria Group Credit Facility and any indebtedness or acquisition contemplated or permitted thereunder. |
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“Total Assets” means the total assets of the Group, calculated on a consolidated basis in accordance with IFRS, excluding all intra-group items and investments in any member of the Group.
20.2 |
Financial Condition |
The Company shall ensure that:
(a) |
Interest Cover Ratio |
On each Quarter Date, the Interest Cover Ratio shall not be less than:
(i) |
in respect of any Relevant Period, beginning with the Relevant Period ending 31 March 2024 and up to and including the Relevant Period ending 31 December 2025, 2.50:1; and |
(ii) |
in respect of any subsequent Relevant Period, 2.75:1. |
(b) |
Leverage Ratio |
On each Quarter Date, the Leverage Ratio in respect of any Relevant Period shall not be greater than 4.50:1.
20.3 |
Financial Testing |
(a) |
The financial covenants set out in Clause 20.2 (Financial Condition) shall be calculated in accordance with IFRS and tested by reference to appropriate set of Annual Financial Statements and Quarterly Financial Statements and/or each Compliance Certificate delivered pursuant to Clause 19.2 (Compliance Certificate). |
(b) |
For the purpose of calculating the financial covenants set out in Clause 20.2 (Financial Condition) for each of the Relevant Periods ending on a date which is less than 12 months after the date of completion of any Permitted Acquisition in relation to a person that becomes a member of the Group, EBITDA and Net Cash Finance Interest Adjusted for Leases in relation to that person acquired pursuant to such Permitted Acquisition shall be included for each full Relevant Period, annualised on a straight line basis. |
(c) |
No item shall be taken into account more than once in any calculation. |
20.4 |
Equity Cure |
(a) |
If, in the event of a breach (or in anticipation of a breach) of paragraph (a) (Interest Cover Ratio) and/or paragraph (b) (Leverage Ratio) of Clause 20.2 (Financial Condition), the Company receives the proceeds of New Shareholder Injections or Company Shareholder Loans (such proceeds an “Additional Investment”) at any time prior to the date falling 20 Business Days after the final date for delivery of the Compliance Certificate in relation to such Relevant Period in respect of which such breach has occurred (or is believed will occur), Interest Cover Ratio and Leverage Ratio shall be recalculated as follows: |
(i) |
for the calculation of Interest Cover Ratio, the total amount of Financial Indebtedness on which “Net Cash Finance Interest Adjusted For Leases” is calculated in respect of the Relevant Period shall be deemed to have been reduced by the entire amount of the Additional Investment; and/or |
(ii) |
for the calculation of Leverage Ratio, “Net Financial Indebtedness” as at the last day of such Relevant Period shall be deemed to have been reduced by the entire amount of the Additional Investment. |
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(b) |
If, after giving effect to the adjustments referred to in paragraph (a) above, the requirements of paragraphs (a) (Interest Cover Ratio) and/or (b) (Leverage Ratio) of Clause 20.2 (Financial Condition) are met, the requirements of paragraphs (a) (Interest Cover Ratio) and/or (b) (Leverage Ratio) of Clause 20.2 (Financial Condition) shall be deemed to have been satisfied as at the relevant original date of determination for the purposes of the Finance Documents. |
(c) |
The relevant Additional Investment shall be applied solely for the purpose of ascertaining compliance with paragraphs (a) (Interest Cover Ratio) and/or (b) (Leverage Ratio) of Clause 20.2 (Financial Condition) and for no other reason. |
(d) |
The rights of the Company under paragraph (a) above cannot be exercised more than four times during the life of the Facilities and, where the Company exercises its rights under paragraph (a) above (a “Cure”), it shall not be permitted to exercise its rights under paragraph (a) above again during the six Months in respect of the next two Quarter Dates following the date of exercise of a Cure. |
(e) |
If the amount of the Additional Investment is greater than the amount required to cure the relevant breach (such excess being the “Over-cure Amount”), the Company may elect to apply all or part of such Over-cure Amount towards curing any subsequent breach of paragraphs (a) (Interest Cover Ratio) and/or (b) (Leverage Ratio) of Clause 20.2 (Financial Condition) (as applicable), and such application shall (together with the rest of the Additional Investment) be deemed to be one exercise of the Company’s rights under paragraph (a) above, provided that such Over-cure Amount has not already been applied for any other purpose and remains unspent and held with an Acceptable Bank and not committed to be spent in any manner. For the avoidance of doubt, Over-Cure Amounts are subject to the restriction in paragraph (d) above. |
(f) |
For the six-Month period commencing on the later of the date on which the proceeds of an Additional Investment are received by the Company and the date any Over-cure Amount is applied in accordance with this Clause 20.4, the Company shall not pay any dividend or other distribution to its shareholders and/or the person that provided the relevant Additional Investment. |
21. |
Stamping |
Upon a Default that is continuing, the Company shall within five Business Days following the request of the Facility Agent (acting on the instructions of the Majority Lenders) provide evidence that those Finance Documents to which a Nigerian member of the Group is a party have been stamped in Nigeria.
22. |
General Undertakings |
22.1 |
General |
(a) |
The Company agrees to be bound by the undertakings set out in this Clause 22 relating to it and, except where expressly agreed otherwise where an undertaking is expressed to apply to a Material Subsidiary, the Company must ensure that each Material Subsidiary which is not a Guarantor perform that undertaking. |
(b) |
Subject to the other provisions of this Clause 22, each Guarantor agrees to be bound by the undertakings set out in this Clause 22 expressed to be binding on an Obligor. |
(c) |
Without prejudice to the obligations of the Guarantors under this Agreement, the Company’s procurement obligations in respect of each Material Subsidiary contained in paragraph (b) of Clause 22.2 (Authorisations and Consents), Clause 22.3 |
86
(Compliance with Laws), Clause 22.6 (Environmental Compliance), Clause 22.8 (Preservation of Assets), Clause 22.11 (Acquisitions), Clause 22.12 (Joint Ventures) and Clause 22.15 (Change of Business):
(i) |
shall only apply to the extent the relevant action or inaction to be procured by the Company is not inconsistent with the obligations of that Material Subsidiary under any Existing Material Subsidiary Debt Facility and, if the relevant Existing Material Subsidiary Debt Facility does not contain any analogous obligation or undertaking of the relevant Material Subsidiary to the Company’s procurement obligation in respect of any of the clauses listed above, then that procurement obligation shall not apply in relation to that Material Subsidiary for so long as the relevant Existing Material Subsidiary Debt Facility continues in full force and effect; and |
(ii) |
will not cause a breach of an undertaking under this Clause 22 to occur in relation to that Material Subsidiary, if any fact, event or circumstance (that would otherwise give rise to a breach of such undertaking) would not constitute or give rise to a breach of an undertaking applicable to the relevant Material Subsidiary under any Existing Material Subsidiary Debt Facility (and no Default shall arise or be deemed to arise in respect thereof). |
(d) |
For the avoidance of doubt, except where expressly agreed otherwise, where an undertaking is expressed to apply to a member of the Group it shall include the Guarantors. |
22.2 |
Authorisations and Consents |
Each Obligor shall (and the Company shall ensure that each Material Subsidiary will) promptly apply for, obtain and promptly renew from time to time and maintain in full force and effect all Authorisations, and comply with the terms of all such Authorisations, and promptly make and renew from time to time all such filings, as may be required under any applicable law or regulation of a Relevant Jurisdiction to:
(a) |
carry out the transactions contemplated by the Finance Documents to which it is a party and to ensure that, subject to the Legal Reservations and Perfection Requirements, its obligations under the Finance Documents to which it is party are valid, legally binding and enforceable; and |
(b) |
carry on its business save to the extent failure to do so would not reasonably be expected to have a Material Adverse Effect. |
22.3 |
Compliance with Laws |
Each Obligor shall (and the Company shall procure that each Material Subsidiary will) comply with all laws and regulations binding upon it, where failure to comply would be reasonably likely to have a Material Adverse Effect.
22.4 |
Sanctions |
(a) |
No Obligor shall (and the Company shall procure that no Subsidiary, nor any other person acting on its or their behalf, will): |
(i) |
directly or indirectly, use, lend, make payments of, contribute or otherwise make available, all or any part of the proceeds of any Loan or other transaction(s) contemplated by this Agreement to finance any trade, business or other activities: |
(A) |
involving, or for the benefit of, any Restricted Party; or |
87
(B) |
in any other manner that would reasonably be expected to result in any Obligor, Material Subsidiary or any Finance Party being in breach of any Sanctions (if and to the extent applicable to either of them) or becoming a Restricted Party; |
(ii) |
engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or breaches or attempts to breach, directly or indirectly, any Sanctions; or |
(iii) |
fund all or part of any payment in connection with a Finance Document out of proceeds derived from any action which is in breach of any Sanctions. |
(b) |
The Company shall ensure that appropriate controls and safeguards are put in place designed to prevent any action being taken that would be contrary to paragraph (a) above. |
(c) |
Subject to paragraph (d) below, this Clause 22.4 shall not apply for the benefit of any Finance Party if and to the extent that giving, complying with or receiving the benefit of (as applicable) such undertaking results in any breach by that Finance Party of any applicable Blocking Law. |
(d) |
In relation to each Finance Party that notifies the Facility Agent and the Company to this effect, any provision of or action required by paragraph (a) or (b) above that results in that Finance Party breaching any applicable Blocking Law will continue to apply for the benefit of that Finance Party notwithstanding such breach and accordingly paragraph (c) will not apply to that Finance Party to this degree. |
22.5 |
Anti-Bribery and Corruption and Anti-Money Laundering |
(a) |
Each Obligor shall (and the Company shall procure it and that of its Subsidiaries will) conduct its business in compliance with Anti-Corruption Laws and Money Laundering Laws. |
(b) |
No Obligor shall (and the Company shall procure that each member of the Group and each of its respective directors, officers and employees will) not directly, or indirectly, use all or any of the proceeds of any Facility for any purpose which would breach Anti-Corruption Laws or Money Laundering Laws. |
22.6 |
Environmental Compliance |
Each Obligor shall (and the Company shall procure that each Material Subsidiary will) comply with all applicable requirements of the Performance Standards where failure to do so would be reasonably likely to have a Material Adverse Effect.
22.7 |
Pari Passu Ranking |
Each Obligor shall ensure that at all times any unsecured and unsubordinated claims of a Finance Party against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of general application to companies.
22.8 |
Preservation of Assets |
The Company shall (and shall procure that each Material Subsidiary will) maintain in good working order and condition (ordinary wear and tear excepted) all of its assets in the conduct of its business where failure to do so would be reasonably likely to have a Material Adverse Effect.
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22.9 |
Negative Pledge |
(a) |
In this Clause 22.9 (Negative Pledge), “Quasi-Security” means an arrangement or transaction described in paragraph (d) below. |
(b) |
The Company shall not create or permit to subsist any Security over any of its assets. |
(c) |
The Company shall procure that no Obligor or Material Subsidiary create or permit to subsist any Security or Quasi-Security over any of its assets. |
(d) |
The Company shall not (and shall procure that no Material Subsidiary will): |
(i) |
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by a member of the Group; |
(ii) |
sell, transfer or otherwise dispose of any of its receivables on recourse terms; |
(iii) |
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or |
(iv) |
enter into any other preferential arrangement having a similar effect, |
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
(e) |
Paragraphs (b), (c) and (d) above do not apply to any Security or (as the case may be) Quasi-Security, which is Permitted Security. |
22.10 |
Disposals |
(a) |
Except as provided under paragraph (b) below, the Company shall not (and shall procure that each Guarantor and Material Subsidiary will not), either in a single transaction or in a series of transactions (whether related or not), dispose of all or any part of any asset. |
(b) |
Paragraph (a) above does not apply to any Permitted Disposal or a Permitted Transaction. |
22.11 |
Acquisitions |
(a) |
Except as provided under paragraph (b) below, the Company shall not (and shall procure that no member of the Group will) acquire any business, shares or other ownership interests in any other person. |
(b) |
Paragraph (a) above does not apply to a Permitted Acquisition or a Permitted Transaction. |
22.12 |
Joint Ventures |
(a) |
Except as provided under paragraph (b) below, the Company shall not (and shall procure that no member of the Group will) enter into, invest in or acquire any Joint Venture. |
(b) |
Paragraph (a) above does not apply to, or in relation to, a Permitted Acquisition, a Permitted Transaction, a Permitted Loan, a Permitted Disposal or a Permitted Joint Venture. |
89
22.13 |
Mergers |
(a) |
Except as permitted under paragraph (b) below, no Obligor shall enter into any amalgamation, demerger, merger or corporate reconstruction. |
(b) |
Paragraph (a) above does not apply to any Permitted Reorganisation. |
22.14 |
Financial Indebtedness |
(a) |
Except as permitted under paragraph (b) below, the Company shall not (and shall ensure that no Material Subsidiary or Guarantor will) incur or allow to remain outstanding any Financial Indebtedness. |
(b) |
Paragraph (a) above does not apply to Permitted Financial Indebtedness. |
22.15 |
Change of Business |
The Company must ensure that no substantial change is made to the general nature of the business of any Obligor or any Material Subsidiary from that carried on at the date of this Agreement.
22.16 |
Loans or Credit |
(a) |
Except as permitted under paragraph (b) below, neither the Company, an Obligor nor a Material Subsidiary shall be a creditor in respect of any Financial Indebtedness. |
(b) |
Paragraph (a) above does not apply to: |
(i) |
a Permitted Loan; or |
(ii) |
a Permitted Transaction. |
22.17 |
Funding by the Company of Material Subsidiaries |
(a) |
If an Event of Default is continuing and has arisen solely as a result of an act or omission of the Company (and not, for the avoidance of doubt, for breach of a procurement obligation or as a result of a misrepresentation in respect of another party), the Company shall not provide any funding to any member of the Group for so long as that Event of Default is continuing, other than the proceeds of any New Shareholder Injection or Company Shareholder Loan which are to be used to on lend to that member of the Group to cure any default (however described and whether through repayment, prepayment or otherwise) under any financing arrangement of that member of the Group. |
(b) |
If a Material Subsidiary Event of Default is continuing, the Company shall not provide any funding to the Material Subsidiary which has given rise to that Material Subsidiary Event of Default, other than any amount which is used to on-lend to that Material Subsidiary to cure that Material Subsidiary Event of Default or to cure any default (howsoever described) in relation to any financial covenant of that Material Subsidiary or any of its Subsidiaries. |
22.18 |
Dividends and Share Redemption |
The Company shall not:
(a) |
declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital); |
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(b) |
pay or repay or allow any member of the Group to pay or repay any amounts in connection with any Financial Indebtedness owing by any member of the Group to any of the Company’s direct or indirect shareholders, other than any Financial Indebtedness in relation to which such a shareholder is a debt provider alongside, and on the same terms as, persons who are not direct or indirect shareholders of the Company. |
(c) |
pay or allow any member of the Group to pay any management, advisory or other fee to or to the order of any of the Company’s direct or indirect shareholders; or |
(d) |
redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so, |
if, in each case, a Default is continuing or would result from any action contemplated under paragraphs (a) to (d) above (inclusive).
22.19 |
Taxes |
(a) |
Each Obligor shall pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that: |
(i) |
such payment is being contested in good faith; |
(ii) |
adequate reserves are being maintained for those Taxes; and |
(iii) |
such payment can be lawfully withheld and failure to pay those Taxes would not be reasonably likely to have a Material Adverse Effect. |
(b) |
The Company will remain resident for Tax purposes only in: |
(i) |
the UK and (as a result of its registration by way of continuation in the Cayman Islands) the Cayman Islands; or |
(ii) |
the UK, |
and each Guarantor will remain resident for Tax purposes in its jurisdiction of incorporation or establishment.
22.20 |
Auditors |
The Auditors shall be an internationally recognised independent public accounting firm.
22.21 |
Financial Assistance |
The Company shall not (and will procure that no member of the Group will) use the proceeds of any Loan in a manner which would, or would be reasonably likely to:
(a) |
result in the guarantee or indemnity from a Guarantor under Clause 16 (Guarantee and Indemnity) or the Nigeria Guarantee constituting unlawful financial assistance for the purposes of any law applicable to the relevant Guarantor; or |
(b) |
otherwise cause the guarantee or indemnity of a Guarantor under Clause 16 (Guarantee and Indemnity) or the Nigeria Guarantee to be void, avoidable, invalidated or otherwise ineffective. |
22.22 |
Further Assurance |
(a) |
Each Obligor shall promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Security |
91
Agent may reasonably specify (and in such form as the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):
(i) |
to perfect the Security created or intended to be created under or evidenced by the Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Security) or for the exercise of any rights, powers and remedies of the Secured Parties provided by or pursuant to the Finance Documents or by law; |
(ii) |
to confer on the Security Agent or confer on the Secured Parties, Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Security Documents; and/or |
(iii) |
to facilitate the realisation of the assets which are, or are intended to be, the subject of the Security. |
(b) |
Each Obligor shall take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by or pursuant to the Finance Documents. |
22.23 |
Distributions |
After the date of this Agreement, the Company shall ensure that no Material Subsidiary (including a Material Subsidiary which is also a Guarantor) enters into any debt financing (or amends or otherwise modifies any Existing Material Subsidiary Debt Facility or Refinancing Facility or other debt financing) in such a way which materially restricts (or further materially restricts) the ability of a Material Subsidiary to directly or indirectly, pay dividends or other distributions to the Company, except for restrictions:
(a) |
arising under the Finance Documents, the Nigeria Group Credit Facility or a Senior Notes Indenture; |
(b) |
arising under any debt financing of a Material Subsidiary acquired, or a Subsidiary which becomes a Material Subsidiary, after the date of this Agreement, provided such debt financing is incurred (and is on terms, insofar as relevant to the ability of a Material Subsidiary to directly or indirectly pay dividends or other distributions to the Company, existing): |
(i) |
immediately prior to the closing date of such acquisition, in the case of any such acquired Material Subsidiary; or |
(ii) |
in relation to any Subsidiary that becomes a Material Subsidiary, at any time prior to the date on which such Subsidiary becomes a Material Subsidiary; |
(c) |
arising under any refinancing of any debt financing or Financial Indebtedness referred to in paragraph (a) or paragraph (b) above, provided that the restrictions are not materially worse, taken as a whole, than those restrictions in the debt facility being refinanced; |
(d) |
arising by operation of law or regulation; |
(e) |
(in the case of amendments to any Existing Material Subsidiary Debt Facility or Refinancing Facility in relation to that Existing Material Subsidiary Debt Facility) not materially worse, taken as a whole, than the restrictions applicable on that Material |
92
Subsidiary under the relevant Existing Material Subsidiary Debt Facility in force at the date of this Agreement;
(f) |
(in the case of any Refinancing Facility) not materially worse, taken as a whole, than the restrictions applicable on that Material Subsidiary under the relevant Existing Material Subsidiary Debt Facility in force as at the date of this Agreement under the Existing Material Subsidiary Debt Facility that has been refinanced; and/or |
(g) |
(in the case of amendments to any Existing Material Subsidiary Debt Facility made after the date of this Agreement or any Refinancing Facility in relation to that Existing Material Subsidiary Debt Facility entered into after the date of this Agreement) not materially worse, taken as a whole, than the restrictions applicable on that Material Subsidiary under the relevant Existing Material Subsidiary Debt Facility in force at the date of this Agreement; |
(h) |
arising under the terms of any debt financing of a Material Subsidiary where the relevant Material Subsidiary has no obligation to repay principal thereunder for a certain period (a “Principal Repayment Exception Period”), provided that: |
(i) |
such Principal Repayment Exception Period does not extend for more than three years after the first utilisation date of the relevant financing; |
(ii) |
such restrictions only apply for as long as the duration of the Principal Repayment Exception Period; and |
(iii) |
(A) in the case of a Subsidiary which is a Material Subsidiary at the date of this Agreement (and for so long as it is a Material Subsidiary), to the extent that the relevant Material Subsidiary receives funds (directly or indirectly) from a Utilisation, that Material Subsidiary (and its Holding Companies that are Subsidiaries of the Company) are able to make distributions (directly or indirectly) to the Company in cash in an amount at least equal to the amount of that Utilisation (B) in the case of any other Material Subsidiary, to the extent that the relevant Material Subsidiary receives funds (directly or indirectly) from a Utilisation, that Material Subsidiary or other members of the Group are able to make distributions (directly or indirectly) to the Company in cash in an amount at least equal to the amount of that Utilisation, |
and, for the purposes of this Clause, the phrase “taken as a whole” shall be applied to the amended or new terms on a continuing and time to time basis by reference to the terms of the relevant Existing Material Subsidiary Debt Facility or debt facility referred to in paragraph (b) above.
22.24 |
Arm’s Length Basis |
(a) |
Except as permitted by paragraph (b) below, no Obligor (other than Holdco or the Company) shall enter into any transaction except on arm’s length terms. |
(b) |
The following transactions shall not be a breach of this Clause 22.24: |
(i) |
any transaction which constitutes a Permitted Payment; |
(ii) |
any transaction in respect of any Transaction Costs; |
(iii) |
any Permitted Loan made to an employee or director of any Nigeria Group member or under paragraph (b) of the definition of Permitted Loan; |
(iv) |
any transaction which is no less favourable to the relevant Nigeria Group member than a transaction on arm’s length terms; and |
93
(v) |
any transaction entered into with the Company or any member of the Nigeria Group. |
22.25 |
Conditions Subsequent |
(a) |
The Company shall procure that each Subsequent Bond Obligor becomes an Additional Guarantor in accordance with Clause 27.2 (Additional Guarantors) on the date that Subsequent Bond Obligor becomes a guarantor in respect of the Senior Notes, subject to paragraph (c) below, provided that no Bond Obligor shall be required to become an Additional Guarantor to the extent it would be unlawful or illegal to do so. |
(b) |
The Company shall procure that each person that becomes a member of the Nigeria Group after the date of this Agreement shall, subject to paragraph (c) below, as soon as possible after becoming a member of the Nigeria Group and in any event within twenty Business Days after becoming a member of the Nigeria Group, becomes an Additional Guarantor in accordance with Clause 27.2 (Additional Guarantors) provided that no member of the Nigeria Group shall be required to become an Additional Guarantor to the extent it would be unlawful or illegal to do so. |
(c) |
To the extent it is or would be unlawful or illegal for a Bond Obligor or any person that becomes a member of the Nigeria Group after the date of this Agreement to become or remain a Guarantor, the Company and the relevant Bond Obligor or member of the Nigeria Group shall use all reasonable endeavours to overcome and/or avoid any such illegality or unlawfulness, including, without limitation: |
(i) |
carrying out any financial assistance “whitewash” or other similar procedure; and/or |
(ii) |
obtaining (or procuring) all relevant corporate authorisations to enable that Bond Obligor or member of the Nigeria Group to lawfully enter into, exercise its rights and comply with its obligations as a Guarantor under the Finance Documents. |
(d) |
The Company shall ensure that all necessary steps to comply with the Perfection Requirements in relation to the Security Documents are carried out within the maximum applicable time period for compliance therewith provided for under applicable law and/or regulation. |
23. |
Events of Default |
23.1 |
Events of Default |
Each of the events or circumstances set out in this Clause (other than Clause 23.19 (Acceleration) and Clause 23.20 (Clean-up Period)) is an Event of Default.
23.2 |
Non-Payment |
The Company does not pay on the due date any amount payable pursuant to a Finance Document, or a Guarantor does not pay on the due date any amount payable by it pursuant to a Finance Document, in each case in the manner and at the place and in the currency in which it is expressed to be payable, unless:
(a) |
its failure to pay is caused by: |
(i) |
administrative or technical error; or |
(ii) |
a Disruption Event; and |
94
(b) |
payment is made within five Business Days of its due date. |
23.3 |
Financial Covenants |
Subject to Clause 20.4 (Equity Cure), any requirement of Clause 20 (Financial Covenants) is not satisfied.
23.4 |
Other Obligations |
(a) |
Subject to paragraph (d) of Clause 22.1 (General), an Obligor does not comply with any provision of the Finance Documents applicable to it (other than those referred to in Clause 23.2 (Non-Payment), Clause 23.3 (Financial Covenants), paragraph (c) of Clause 18.2 (Status), Clause 22.4 (Sanctions) and Clause 22.5 (Anti-Bribery and Corruption and Anti-Money Laundering)). |
(b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 20 Business Days of the earlier of the Facility Agent giving notice to the Company of the failure to comply and the Company or relevant Obligor becoming aware of the failure to comply (provided that this paragraph (b) shall not apply in relation to any failure to comply constituting a Clean-up Default in respect of which none of the exceptions in paragraph (b) of Clause 23.20 (Clean-up Period) apply). |
23.5 |
Misrepresentation |
Any representation, warranty or statement made or deemed to be made by an Obligor in the Finance Documents or in any other document delivered by or on behalf of an Obligor under or in connection with any Finance Document (other than under or in connection with paragraph (c) of Clause 18.2 (Status) or Clause 22.4 (Sanctions)) is or proves to have been incorrect or misleading in any material respect when made or deemed to be made, unless (except to the extent such misrepresentation, breach of warranty or misstatement constitutes a Clean-up Default in respect of which none of the exceptions in paragraph (b) of Clause 23.20 (Clean-up Period) apply) the circumstances giving rise to the misrepresentation, breach of warranty or misstatement:
(a) |
are capable of remedy; and |
(b) |
are remedied within 20 Business Days of the earlier of the Facility Agent giving notice of the misrepresentation, breach of warranty or misstatement to the Company and the Company or relevant Obligor becoming aware of the misrepresentation, breach of warranty or misstatement. |
23.6 |
Company Cross-Default |
Any of the following occurs in respect of the Company:
(a) |
any of its Financial Indebtedness is not paid when due (after the expiry of any originally applicable grace period); |
(b) |
any of its Financial Indebtedness (excluding any Financial Indebtedness falling within paragraph (k) of that definition when the underlying obligation is in respect of a member of the Group) is declared to be or otherwise becomes due and payable before its specified maturity as a result of an event of default (however described); or |
(c) |
any of its creditors becomes entitled to declare any of its Financial Indebtedness (excluding any Financial Indebtedness falling within paragraph (k) of that definition when the underlying obligation is in respect of a member of the Group) due and payable before its specified maturity as a result of any event of default (however described), |
95
unless the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within all or any of paragraphs (a) to (c) above is less than USD 75,000,000 (or its equivalent in any other currency or currencies).
23.7 |
Obligor Cross-Default |
Any of the following occurs in respect of an Obligor (other than the Company):
(a) |
any of its Financial Indebtedness is not paid when due (after the expiry of any originally applicable grace period); |
(b) |
any of its Financial Indebtedness (excluding any Financial Indebtedness falling within paragraph (k) of that definition when the underlying obligation is in respect of a member of the Group) is declared to be or otherwise becomes due and payable before its specified maturity as a result of an event of default (however described); or |
(c) |
any of its creditors becomes entitled to declare any of its Financial Indebtedness (excluding any Financial Indebtedness falling within paragraph (k) of that definition when the underlying obligation is in respect of a member of the Group) due and payable before its specified maturity as a result of any event of default (however described), |
unless the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within all or any of paragraphs (a) to (c) above is less than USD 75,000,000 (or its equivalent in any other currency or currencies).
23.8 |
Insolvency |
(a) |
Any Obligor: |
(i) |
is unable or admits inability to pay its debts as they fall due; |
(ii) |
suspends making payments on any of its debts; or |
(iii) |
by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness. |
(b) |
The value of the assets of an Obligor is less than its liabilities (taking into account contingent and prospective liabilities). |
(c) |
A moratorium is declared in respect of any indebtedness of an Obligor. |
23.9 |
Insolvency Proceedings |
(a) |
Any corporate action, legal proceedings or other procedure or step is taken in relation to: |
(i) |
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of an Obligor other than a solvent liquidation or reorganisation; |
(ii) |
a composition, compromise, assignment or arrangement with any creditor of an Obligor; |
(iii) |
the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of an Obligor or its assets; |
(iv) |
enforcement of any Security over any assets of an Obligor; or |
96
(v) |
any analogous procedure or step is taken in any jurisdiction. |
(b) |
This Clause 23.9 shall not apply to (i) any winding-up petition which is frivolous or vexatious or which is being contested in good faith, and, in each case, is discharged, stayed or dismissed within 40 Business Days of commencement or (ii) any step or procedure which is a Permitted Reorganisation. |
23.10 |
Creditors’ Process or Expropriation |
Any expropriation, seizure, nationalisation, compulsory acquisition, attachment, sequestration, distress, execution or any analogous event having an aggregate value of at least USD 100,000,000 (or its equivalent in any other currency) affects any asset or assets of the Group and is not discharged within 40 Business Days.
23.11 |
Cessation of Business |
An Obligor ceases, or threatens to cease, to carry on all or a material part of its business except as a result of any disposal not prohibited under this Agreement.
23.12 |
Invalidity and Unlawfulness |
(a) |
Subject to the Legal Reservations and the Perfection Requirements at any time it is or becomes unlawful for any Obligor to perform any of its material obligations under any of the Finance Documents or any Security created or expressed to be created by the Security Documents ceases to be effective. |
(b) |
Any obligation or obligations of any Obligor under any Finance Document is or are not or cease or ceases to be (subject to the Legal Reservations and the Perfection Requirements) legal, valid, binding or enforceable and the cessation individually or cumulatively materially adversely affects the interests of the Finance Parties under the Finance Documents. |
(c) |
Subject to the Legal Reservations and Perfection Requirements, any Finance Document ceases to be in full force and effect or any Security ceases to be legal, valid, binding, enforceable or effective or is alleged by a party to it (other than a Finance Party) to be ineffective. |
23.13 |
Repudiation and Rescission of Agreements |
Any Obligor rescinds or purports to rescind or repudiates or purports to repudiate a Finance Document to which it is a party.
23.14 |
Material Adverse Change |
At any time after the date of this Agreement, any event or series of events occurs which has or would be reasonably likely to have a Material Adverse Effect.
23.15 |
Failure to Comply with Court Judgment |
An Obligor fails to comply with or pay by the required time any sum due from it under any final judgment or any final order made or given by a court, in each case of competent jurisdiction, having a value of at least USD 75,000,000 (or its equivalent in any other currency).
23.16 |
Litigation |
Any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes is commenced or threatened against an Obligor or its assets which is reasonably likely to be adversely determined and, if adversely determined, would be reasonably likely to have a Material Adverse Effect.
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23.17 |
Auditor’s Qualification |
The Auditors qualify their report on the audited financial statements of the Company (a) on the grounds that the Auditors are unable to prepare those financial statements on a going concern basis (other than where such qualification arises solely because of a potential breach of the financial covenants in Clause 20.2 (Financial Condition)), (b) where that qualification is otherwise in terms or as to issues which could otherwise reasonably be expected to be (individually or cumulatively) materially adverse to the interests of the Finance Parties under the Finance Documents or (c) by reason of failure to disclose material information or materially inaccurate disclosure.
23.18 |
Revocation of Material Authorisation |
A material licence or Authorisation of an Obligor or a Material Subsidiary has been revoked or ceases to be in full force as a result of a final definitive judgement.
23.19 |
Acceleration |
If an Event of Default is continuing, the Facility Agent may, and must if so instructed by the Majority Lenders, by notice to the Company:
(a) |
cancel all or part of the Total Commitments; |
(b) |
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable; |
(c) |
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be payable on demand by the Facility Agent acting on the instructions of the Majority Lenders; and/or |
(d) |
exercise or direct the Security Agent to exercise any or all of its rights, powers, authorities, discretions or remedies under the Finance Documents. |
Any such notice will take effect in accordance with its terms.
23.20 |
Clean-up Period |
(a) |
Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “Clean-up Period”), if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of representation or warranty, a breach of covenant or a Default (in each case, a “Clean-up Default”) then: |
(i) |
promptly upon becoming aware of its occurrence, the Company shall notify the Facility Agent of that Clean-up Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and |
(ii) |
subject to paragraph (b) below, during the Clean-up Period that Clean-up Default shall not constitute a Default. |
(b) |
Paragraph (a) above shall not apply with respect to any Clean-up Default that: |
(i) |
is not capable of remedy; |
(ii) |
is capable of remedy but reasonable steps are not being taken to remedy it; |
98
(iii) |
has been procured by or approved by the Company; or |
(iv) |
could reasonably be expected to have a Material Adverse Effect. |
(c) |
If the relevant circumstances are continuing on or after the end of the Clean-up Period, there shall be a breach of representation or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties). |
(d) |
If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary. |
24. |
Security |
24.1 |
Security Agent as Holder of Security |
(a) |
In this Clause 24.1 (Security Agent as Holder of Security): |
“Secured Party Claim” means any amount which an Obligor owes to a Secured Party under or in connection with the Finance Documents.
“Security Agent Claim” has the meaning given to it in paragraph (c) below.
(b) |
Unless expressly provided to the contrary in any Finance Document, the Security Agent declares that it holds any security created by a Security Document and the proceeds of that security on trust for the Secured Parties on the terms contained in this Agreement. |
(c) |
Each Obligor must pay the Security Agent, as an independent and separate creditor, an amount equal to each Secured Party Claim on its due date (each a “Security Agent Claim”). |
(d) |
Unless expressly provided to the contrary in any Finance Document, the Security Agent holds: |
(i) |
any security created by a Security Document; |
(ii) |
the benefit of any Security Agent Claims; and |
(iii) |
any proceeds of the security, |
for the benefit, and as the property, of the Secured Parties and so that they are not available to the personal creditors of the Security Agent.
(e) |
Each Security Agent Claim is created on the understanding that the Security Agent must: |
(i) |
share the proceeds of each Security Agent Claim with the other Secured Parties; and |
(ii) |
pay those proceeds to the Secured Parties, |
in accordance with Clause 29 (Application of Proceeds).
(f) |
The Security Agent may enforce performance of any Security Agent Claim in its own name as an independent and separate right. This includes any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceeding. |
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(g) |
Each Secured Party must, at the request of the Security Agent, perform any act required in connection with the enforcement of any Security Agent Claim. This includes joining in any proceedings as co- claimant with the Security Agent. |
(h) |
Unless the Security Agent fails to enforce a Security Agent Claim within a reasonable time after its due date, a Secured Party may not take any action to enforce the corresponding Secured Party Claim unless it is requested to do so by the Security Agent. |
(i) |
Each Obligor irrevocably and unconditionally waives any right it may have to require a Secured Party to join in any proceedings as co-claimant with the Security Agent in respect of any Security Agent Claim. |
(j) |
Each Secured Party Claim and Security Agent Claim is created on the understanding that: |
(i) |
the discharge by an Obligor of a Secured Party Claim will discharge the corresponding Security Agent Claim in the same amount; |
(ii) |
the discharge by an Obligor of a Security Agent Claim will discharge the corresponding Secured Party Claim in the same amount; |
(iii) |
the aggregate amount of the Security Agent Claims will never exceed the aggregate amount of Secured Party Claims; |
(iv) |
a defect affecting a Security Agent Claim against an Obligor will not affect any Secured Party Claim; and |
(v) |
a defect affecting a Secured Party Claim against an Obligor will not affect any Security Agent Claim. |
(k) |
If the Security Agent returns to any Obligor, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Security Agent. |
24.2 |
No Responsibility to Perfect Security |
The Security Agent will not be liable to any Party or any other person for any failure to perfect or protect any Security created under any Security Document including any failure to:
(a) |
require the deposit with it of any deed or document certifying, representing or constituting the title of any Obligor to any Security Asset (and the Security Agent may allow any bank providing safe custody services or any professional adviser to the Security Agent to retain any such deed or document in its possession); |
(b) |
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any Security Document or any Security created under any Security Document; |
(c) |
register, file or record or otherwise protect its rights under any Security Document (or the priority of any Security created under any Security Document) under any law or regulation or to give notice to any person of the execution of any Security Document or the existence of any such Security; |
(d) |
take, or to require any Obligor to take, any step to perfect its title to any Security Asset or to render any Security created under any Security Document effective or to secure the creation of any ancillary Security under any law or regulation; or |
100
(e) |
require any further assurance in relation to any Security Document. |
24.3 |
Insurance by Security Agent |
(a) |
The Security Agent will not be obliged: |
(i) |
to insure any of the Security Assets; |
(ii) |
to require any other person to maintain any insurance; or |
(iii) |
to verify any obligation to arrange or maintain insurance contained in any Finance Document, |
and the Security Agent will not be liable for any cost, loss or liability whatsoever any person incurs or any diminution in value arising as a result of the lack of, or inadequacy of, any such insurance.
(b) |
Where the Security Agent is named on any insurance policy as an insured party, it will not be liable for any cost, loss or liability whatsoever any person incurs or any diminution in value arising as a result of the Security Agent’s failure to notify the insurers of any material fact relating to the risk assumed by the insurers or any other information of any kind, unless the Majority Lenders request it to do so in writing and the Security Agent fails to do so within 14 days after receipt of that request. |
24.4 |
Acceptance of Title |
The Security Agent may accept without enquiry, and will not be obliged to investigate, any right or title any Obligor may have to any Security Asset and will not be liable for, or bound to require any Obligor to remedy, any defect in its right or title.
24.5 |
Release of Security |
(a) |
If a Guarantor: |
(i) |
ceases to be a member of the Group; or |
(ii) |
is released from its obligations under the Finance Documents, |
in a manner permitted or not prohibited under the Finance Documents, any Security created by that Guarantor over its assets under the Security Documents will be released.
(b) |
If a disposal of any asset subject to a Security created by a Security Document is made in the following circumstances: |
(i) |
the disposal is allowed by the terms of the Finance Documents and will not result in, or could not reasonably be expected to result in, any Default; |
(ii) |
all Lenders agree to the disposal; |
(iii) |
the disposal is being made at the request of the Security Agent in circumstances where any Security created by the Security Documents has become enforceable; or |
(iv) |
the disposal is being effected by enforcement of a Security Document, |
the asset being disposed of (and, in the case of a disposal of shares in a Guarantor which results in it ceasing to be a member of the Group, all of the assets of that Guarantor) will be released from any Security over it created by a Security Document. However, the proceeds of any disposal (or an amount corresponding to them) must be applied in accordance with the requirements of the Finance Documents (if any).
101
(c) |
Any release under this Clause 24.5 (Release of Security) will not become effective until the date of the relevant disposal or otherwise in accordance with the consent of the Majority Lenders. |
(d) |
If a disposal is not made, then any release relating to that disposal will have no effect, and the obligations of the Obligors under the Finance Documents will continue in full force and effect. |
(e) |
If the Security Agent is instructed by the Facility Agent that a release is allowed under this Clause 24.5 (Release of Security), (at the request and expense of the relevant Obligor) each Finance Party must enter into any document and do all such other things which are reasonably required to achieve that release. Each other Finance Party irrevocably authorises the Security Agent to enter into any such document. |
24.6 |
Certificate of Non-Crystallisation |
The Security Agent may, at the cost and request of the Company, issue certificates of non-crystallisation.
24.7 |
Enforcement Through Security Agent Only |
The Finance Parties have no independent power to enforce, and no recourse to, any of the Security Documents or to exercise any right, power, authority or discretion arising under the Security Documents except through the Security Agent.
24.8 |
Information for Security Agent |
Each Finance Party and each Obligor must supply the Security Agent with any information that the Security Agent may reasonably specify as being necessary or desirable to enable it to perform its functions as Security Agent.
25. |
Changes to the Lenders |
25.1 |
Assignments and Transfers by the Lenders |
Subject to the other provisions of this Clause and Clause 26 (Restriction on Debt Purchase Transactions), a Lender (the “Existing Lender”) may:
(a) |
assign any of its rights; or |
(b) |
transfer by novation any of its rights and obligations, |
under the Finance Documents to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the “New Lender”).
25.2 |
Conditions of Assignment or Transfer |
(a) |
The consent of the Company is required for an assignment, transfer, sub-participation (which transfers any discretion with regards to the exercise of any voting rights) or derivative transaction (which transfers any discretion with regards to the exercise of any voting rights) unless (subject to paragraphs (c) and (d) below) the assignment or transfer, sub-participation (which transfers any discretion with regards to the exercise of any voting rights) or derivative transaction (which transfers any discretion with regards to the exercise of any voting rights) is: |
(i) |
to another Lender or an Affiliate of a Lender; |
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(ii) |
if the Existing Lender is a fund, to a fund which is a Related Fund of the Existing Lender; or |
(iii) |
effected at a time when an Event of Default is continuing. |
(b) |
The Facility Agent has no obligation to verify that the conditions set out in paragraph (a) above have been satisfied. |
(c) |
Notwithstanding the above or any other provisions of this Agreement, an Existing Lender must obtain the prior written consent of the Company (to be granted in its absolute discretion) before entering into any assignment, transfer, sub-participation (which transfers any discretion with regards to the exercise of any voting rights) or derivative transaction (which transfers any discretion with regards to the exercise of any voting rights) with or in favour of any person that is a Trade Competitor at the time of such assignment, transfer, sub-participation or derivative transaction. |
For this purpose “Trade Competitor” means a person, or an Affiliate or Related Fund of such person, where such person’s primary business, or a material portion of such person’s business, is substantially the same as the business of the Group or any member of the Group, including the business of passive telecommunication infrastructure.
(d) |
Notwithstanding the above or any other provisions of this Agreement, an Existing Lender must obtain the prior written consent of the Company (to be granted in its absolute discretion) before entering into any discussion with any potential New Lender or any potential person with which the Existing Lender may, or may wish to, enter into any assignment, transfer, sub-participation (which transfers any discretion with regards to the exercise of any voting rights) or derivative transaction (which transfers any discretion with regards to the exercise of any voting rights), unless such discussion is with: |
(i) |
another Lender or an Affiliate of a Lender; |
(ii) |
if the Existing Lender is a fund, a fund which is a Related Fund of the Existing Lender; or |
(iii) |
effected at a time when an Event of Default is continuing. |
(e) |
Except in the case of paragraph (c) above, the consent of the Company to an assignment, transfer, sub-participation (which transfers any discretion with regards to the exercise of any voting rights) or derivative transaction (which transfers any discretion with regards to the exercise of any voting rights) (if required) or to any discussion in respect of any proposed assignment, transfer, sub-participation (which transfers any discretion with regards to the exercise of any voting rights) or derivative transaction (which transfers any discretion with regards to the exercise of any voting rights) (if required) must not be unreasonably withheld or delayed. The Company will be deemed to have given its consent ten Business Days after the Company is given notice of the request unless consent is expressly refused by the Company within that time. |
(f) |
Each Existing Lender shall use its reasonable endeavours to provide prior written notice of any proposed assignment, transfer, sub-participation (which transfers any discretion with regards to the exercise of any voting rights) or derivative transaction (which transfers any discretion with regards to the exercise of any voting rights) to be entered into by such Existing Lender to the Company and the Facility Agent as soon as possible and no later than 10 Business Days prior to the date of such assignment, transfer, sub-participation (which transfers any discretion with regards to the exercise of any voting rights) or derivative transaction (which transfers any discretion with regards to the exercise of any voting rights) (provided that, for the avoidance of doubt, any failure to |
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provide such prior written notice will not, in any event, solely as a result of such failure result in that Existing Lender or New Lender being a Defaulting Lender or invalidate that assignment, transfer, sub-participation (which transfers any discretion with regards to the exercise of any voting rights) or derivative transaction (which transfers any discretion with regards to the exercise of any voting rights)).
(g) |
Unless the Company and the Facility Agent otherwise agree, a transfer of part of a Commitment or of part of its rights and obligations under this Agreement by an Existing Lender must be in a minimum amount of USD 1,000,000 or, if the Commitment of an Existing Lender is less than USD 1,000,000, the whole amount of that Existing Lender’s Commitment. |
(h) |
An assignment will only be effective on: |
(i) |
receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will, in relation to the assigned rights, assume obligations to the other Parties equivalent to those it would have been under if it had been an Original Lender; and |
(ii) |
performance by the Facility Agent of any “know your customer” checks or other similar checks required under any applicable law or regulation in relation to such assignment to a New Lender, the completion of which the Facility Agent must notify to the Existing Lender and the New Lender promptly. |
(i) |
A transfer will only be effective if the procedure set out in Clause 25.5 (Procedure for Transfer) is complied with. |
(j) |
If: |
(i) |
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and |
(ii) |
as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a Tax Payment or a payment relating to Increased Costs, |
then the relevant Obligor is only obliged to make that Tax Payment or payment relating to Increased Costs to the same extent that it would have been obliged to pay if the assignment, transfer or change had not occurred provided that this paragraph shall not apply in relation to Clause 12.2 (Tax gross-up), to a Treaty Lender that has included a confirmation of its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (g)(ii)(B) of Clause 12.2 (Tax gross-up) if the Obligor making the payment has not made a Company DTTP Filing in respect of that Treaty Lender.
(k) |
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms that: |
(i) |
the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or before the date on which the transfer or assignment becomes effective in accordance with this Agreement; and |
(ii) |
it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender. |
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25.3 |
Assignment or Transfer Fee |
Unless the Facility Agent otherwise agrees, a New Lender must, on or before the date on which an assignment or transfer takes effect, pay to the Facility Agent (for its own account) a fee of USD 3,000.
25.4 |
Limitation of Responsibility of Existing Lenders |
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for: |
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents; |
(ii) |
the financial condition of any Obligor; |
(iii) |
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or |
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document, |
and any representations or warranties implied by law are excluded.
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties that it: |
(i) |
has made (and must continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities (including the nature and extent of any recourse against any Party or its assets) in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and |
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force. |
(c) |
Nothing in any Finance Document obliges an Existing Lender to: |
(i) |
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause; or |
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise. |
25.5 |
Procedure for Transfer |
(a) |
Subject to the conditions set out in Clause 25.2 (Conditions of Assignment or Transfer), a transfer is effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent must, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement, execute that Transfer Certificate. |
(b) |
The Facility Agent is only obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied with the results of any |
105
“know your customer” checks or other similar checks required under any applicable law or regulation in relation to the transfer to such New Lender.
(c) |
Subject to Clause 25.9 (Pro Rata Interest Settlement), on the Transfer Date: |
(i) |
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents each of the Obligors and the Existing Lender will be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents will be cancelled (being the “Discharged Rights and Obligations”); |
(ii) |
each of the Obligors and the New Lender will assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender; |
(iii) |
each Administrative Party, the New Lender and other Lenders will acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent each Administrative Party and the Existing Lender will each be released from further obligations to each other under the Finance Documents; and |
(iv) |
the New Lender will become a Party as a “Lender”. |
(d) |
Each Party (other than the Existing Lender and the New Lender) irrevocably authorises the Facility Agent to enter into and deliver any duly completed Transfer Certificate on its behalf. |
25.6 |
Procedure for Assignment |
(a) |
Subject to the conditions set out in Clause 25.2 (Conditions of Assignment or Transfer), an assignment may be effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Facility Agent must, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement. |
(b) |
The Facility Agent is only obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied with the results of any “know your customer” checks or other similar checks required under any applicable law or regulation in relation to the assignment to such New Lender. |
(c) |
Subject to Clause 25.9 (Pro Rata Interest Settlement), on the Transfer Date: |
(i) |
the Existing Lender will assign absolutely to the New Lender the rights under the Finance Documents expressed to be the subject of the assignment in the Assignment Agreement; |
(ii) |
the Existing Lender will be released by each Obligor and the other Finance Parties from the obligations owed by it (the “Relevant Obligations”) and expressed to be the subject of the release in the Assignment Agreement; |
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(iii) |
the New Lender will become a Party as a “Lender” and will be bound by obligations equivalent to the Relevant Obligations; |
(iv) |
if the assignment relates only to part of the Existing Lender’s participation in the outstanding Loans that part will be separated from the Existing Lender’s participation in the outstanding Loans, made an independent debt and assigned to the New Lender as a whole debt; and |
(v) |
the Facility Agent’s execution of the Assignment Agreement as agent for the Company will constitute notice to the Company of the assignment. |
(d) |
Each Party (other than the Existing Lender and the New Lender) irrevocably authorises the Facility Agent to enter into and deliver any duly completed Assignment Agreement on its behalf. |
(e) |
Lenders may utilise procedures other than those set out in this Clause 25.6 (Procedure for Assignment) to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor or unless in accordance with Clause 25.5 (Procedure for Transfer), to obtain a release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender) provided that they comply with the conditions set out in Clause 25.2 (Conditions of Assignment or Transfer). |
25.7 |
Copy of Transfer Certificate or Assignment Agreement to Company |
The Facility Agent must, as soon as reasonably practicable after it has executed a Transfer Certificate or an Assignment Agreement, send to the Company a copy of that Transfer Certificate or Assignment Agreement.
25.8 |
Security Over Lenders’ Rights |
In addition to the other rights provided to Lenders under this Clause, each Lender may without consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create a Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and |
(b) |
in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities, |
except that no such charge, assignment or Security will:
(i) |
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or |
(ii) |
require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents. |
25.9 |
Pro Rata Interest Settlement |
(a) |
In respect of any transfer pursuant to Clause 25.5 (Procedure for Transfer) or any assignment pursuant to Clause 25.6 (Procedure for Assignment) the Transfer Date of |
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which, in each case, is after the date of that notification and is not on the last day of an Interest Period:
(i) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time will continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (“Accrued Amounts”) and will become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and |
(ii) |
the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that: |
(A) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and |
(B) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 25.9 (Pro Rata Interest Settlement), have been payable to it on that date, but after deduction of the Accrued Amounts. |
(b) |
In this Clause 25.9 (Pro Rata Interest Settlement), references to “Interest Periods” will be construed to include a reference to any other period for accrual of fees. |
26. |
Restriction on Debt Purchase Transactions |
26.1 |
Prohibition on Debt Purchase Transactions by the Company |
The Company shall not enter into any Debt Purchase Transaction, be a Lender or a party to a Debt Purchase Transaction of the type referred to in paragraphs (b) or (c) of the definition of Debt Purchase Transaction.
26.2 |
Disenfranchisement on Debt Purchase Transactions Entered into by Affiliates |
(a) |
For so long as a Sponsor Affiliate: |
(i) |
beneficially owns a Commitment; or |
(ii) |
has entered into a sub-participation agreement relating to a Commitment or other agreement or arrangement having a substantially similar economic effect and such agreement or arrangement has not been terminated, |
in ascertaining:
(A) |
the Majority Lenders; or |
(B) |
whether: |
(1) |
any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments; or |
(2) |
the agreement of any specified group of Lenders, |
has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents such Commitment shall be deemed to be zero and such Sponsor Affiliate or the person with whom it has entered into such sub-participation, other agreement or arrangement shall be deemed not to be a Lender for the purposes of paragraphs (A) and (B) above (unless in the case of a person not being a Sponsor Affiliate it is a Lender by virtue otherwise than by beneficially owning the relevant Commitment).
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(b) |
Each Lender shall, unless such Debt Purchase Transaction is an assignment or transfer, promptly notify the Facility Agent in writing if it knowingly enters into a Debt Purchase Transaction with a Sponsor Affiliate (a “Notifiable Debt Purchase Transaction”), such notification to be substantially in the form set out in Part 1 of Schedule 10 (Forms of Notifiable Debt Purchase Transaction Notice). |
(c) |
A Lender shall promptly notify the Facility Agent if a Notifiable Debt Purchase Transaction to which it is a party: |
(i) |
is terminated; or |
(ii) |
ceases to be with a Sponsor Affiliate, |
such notification to be substantially in the form set out in Part 2 of Schedule 10 (Forms of Notifiable Debt Purchase Transaction Notice).
(d) |
Each Sponsor Affiliate that is a Lender agrees that: |
(i) |
in relation to any meeting or conference call to which all the Lenders are invited to attend or participate, it shall not attend or participate in the same if so requested by the Facility Agent or, be entitled to receive the agenda or any minutes of the same; and |
(ii) |
in its capacity as Lender, it shall not be entitled to receive any report or other document prepared at the behest of, or on the instructions of, the Facility Agent or one or more of the Lenders. |
26.3 |
Sponsor Affiliates’ Notification to Other Lenders of Debt Purchase Transactions |
Any Sponsor Affiliate which is or becomes a Lender and which enters into a Debt Purchase Transaction as a purchaser or a participant shall, by 5pm on the Business Day following the day on which it entered into that Debt Purchase Transaction, notify the Facility Agent of the extent of the Commitment(s) or amount outstanding to which that Debt Purchase Transaction relates. The Facility Agent shall promptly disclose such information to the Lenders.
27. |
Changes to the Obligors |
27.1 |
Assignment and Transfers by Obligors |
No Obligors may assign any of its rights or transfer any of its rights and obligations under the Finance Documents without the prior consent of all the Lenders.
27.2 |
Additional Guarantors |
(a) |
Subject to compliance with paragraph (c) below, if a Subsidiary is to become an Additional Guarantor (other than the Guarantors as at the date of this Agreement and the Original Nigeria Guarantors), the Company must notify the Facility Agent (and the Facility Agent must notify the Lenders promptly of its receipt of that notice). That Subsidiary will, subject to paragraph (b) below, become an Additional Guarantor and accede to this Agreement (in the case of any Additional Guarantor that is not |
109
incorporated in Nigeria) or the Nigeria Guarantee (in the case of any Additional Guarantor that is incorporated in Nigeria) if:
(i) |
the Company delivers to the Facility Agent a duly completed and executed Accession Letter; and |
(ii) |
the Facility Agent has received all of the documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent) in relation to that Subsidiary becoming an Additional Guarantor, each in form and substance satisfactory to the Relevant Lenders (or the receipt of such documents and evidence has been waived by the Relevant Lenders). |
(b) |
The relevant Subsidiary will become an Additional Guarantor when the Facility Agent notifies the other Finance Parties and the Company that it has received the document referred to in paragraphs (a)(i) above and notifies the Company that the Lenders are satisfied in accordance with paragraph (a)(ii) above. The Facility Agent must give this notification as soon as reasonably practicable. |
(c) |
If the accession of an Additional Guarantor requires any Finance Party or prospective new Lender to carry out “know your customer” checks or other similar checks under any applicable law or regulation in circumstances where the necessary information is not already available to it, the Company must, promptly on request by any Finance Party, supply, or procure the supply of, any documentation or other evidence reasonably requested by that Finance Party (whether for itself, or on behalf of any other Finance Party or any prospective new Lender) to enable a Finance Party or prospective new Lender to carry out and be satisfied with the results of those checks. |
27.3 |
Repetition of Representations |
Delivery of an Accession Letter to the Facility Agent constitutes confirmation by the relevant Subsidiary that the Repeating Representations are correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing.
27.4 |
Resignation of a Guarantor |
(a) |
The Company may request that a Guarantor (other than the Company) ceases to be a Guarantor by delivering to the Facility Agent a Resignation Letter. |
(b) |
The Facility Agent must accept a Resignation Letter and notify the Company and the Lenders promptly of its acceptance if: |
(i) |
no Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the case); |
(ii) |
no amount owing by that Guarantor under any Finance Document is outstanding; and |
(iii) |
all the Lenders have consented to the Company’s request. |
(c) |
The Guarantor will cease to be a Guarantor when the Facility Agent gives the notification to the Company referred to in paragraph (b) above. |
28. |
Role of the Administrative Parties |
28.1 |
The Facility Agent and the Security Agent |
(a) |
Each Finance Party (other than the Facility Agent and the Security Agent) appoints each Agent to act as its agent under and in connection with the Finance Documents. |
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(b) |
Each other Finance Party authorises each Agent to: |
(i) |
perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to that Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions; and |
(ii) |
enter into and deliver each Finance Document expressed to be entered into by that Agent. |
(c) |
Without prejudice to the generality of paragraph (b) above, each Finance Party: |
(i) |
confirms its approval of each Security Document; and |
(ii) |
authorises and directs the Security Agent (by itself or by such person(s) as it may nominate) to enter into and enforce the Security Documents as trustee (or agent) or as otherwise provided (and whether or not expressly in the names of the Finance Parties) on its behalf. |
28.2 |
Instructions |
(a) |
Each Agent: |
(i) |
must exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by: |
(A) |
all Lenders if a Finance Document stipulates the matter is an all Lender decision; |
(B) |
the relevant Finance Party or group of Finance Parties if a Finance Document stipulates the matter is a decision for that Finance Party or group of Finance Parties; and |
(C) |
in all other cases, the Majority Lenders; and |
(ii) |
will not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with paragraph (i) above. |
(b) |
Each Agent may request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates that the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and it may refrain from acting unless and until it receives any instructions or clarification that it has requested. |
(c) |
Except in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to an Agent by the Majority Lenders will override any conflicting instructions given by any other Party or Parties and will be binding on all Finance Parties. |
(d) |
Paragraph (a) above does not apply: |
(i) |
where a contrary indication appears in a Finance Document; |
(ii) |
where a Finance Document requires the relevant Agent to act in a specified manner or to take a specified action; |
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(iii) |
in respect of any provision which protects the relevant Agent’s own position in its personal capacity as opposed to its role of Agent including, without limitation, Clause 24.2 (No Responsibility to Perfect Security) to Clause 24.6 (Certificate of Non-Crystallisation), Clause 28.5 (No Fiduciary Duties) to Clause 28.10 (Exclusion of Liability), Clause 28.13 (Confidentiality) to Clause 28.20 (Custodians and Nominees) and Clause 28.23 (Winding Up of Security Arrangements) to Clause 28.25 (Disapplication of Trustee Acts); or |
(iv) |
in respect of the exercise of the Security Agent’s discretion to exercise a right, power or authority under any of: |
(A) |
Clause 29.1 (Order of Application); |
(B) |
Clause 29.2 (Prospective Liabilities); and |
(C) |
Clause 29.5 (Permitted Deductions). |
(e) |
If giving effect to instructions given by the Majority Lenders would (in the relevant Agent’s opinion) have an effect equivalent to an amendment or waiver referred to in Clause 38 (Amendments and Waivers), the relevant Agent will not act in accordance with those instructions unless it obtains consent to do so from each Party whose consent would have been required in respect of that amendment or waiver. |
(f) |
In exercising any discretion to exercise a right, power or authority under the Finance Documents where either: |
(i) |
it has not received any instructions as to the exercise of that discretion; or |
(ii) |
the exercise of that discretion is subject to paragraph (d)(iv) above, |
the Security Agent must do so having regard to the interests of all the Secured Parties.
(g) |
An Agent may refrain from acting in accordance with the instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security and/or prefunding that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions. |
(h) |
Without prejudice to the remainder of this Clause 28.2 (Instructions), in the absence of instructions an Agent may act (or refrain from taking any action) as it considers to be in the best interests of all the Finance Parties (in the case of the Facility Agent) and as it considers to be appropriate (in the case of the Security Agent). |
(i) |
No Agent is authorised to act on behalf of a Finance Party (without first obtaining that Finance Party’s consent) in any legal or arbitration proceedings relating to any Finance Document unless the proceedings relate to: |
(i) |
the perfection, preservation or protection of rights under the Security Documents; or |
(ii) |
the enforcement of any Security Document. |
(j) |
The Security Agent shall be entitled to rely on any instruction delivered to it by the Facility Agent on behalf of the Majority Lenders or any other group of Finance Parties entitled to or required to instruct it in accordance with this Agreement and shall be entitled to assume that any instruction so delivered has been appropriately authorised. |
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28.3 |
Duties of the Agents |
(a) |
The duties, obligations and responsibilities of each Agent under the Finance Documents are solely mechanical and administrative in nature. |
(b) |
Subject to paragraph (c) below, each Agent must promptly forward to a Party the original or a copy of any document which is delivered to that Agent for that Party by any other Party. |
(c) |
Without prejudice to Clause 25.7 (Copy of Transfer Certificate or Assignment Agreement to Company), paragraph (b) above does not apply to any Transfer Certificate or Assignment Agreement. |
(d) |
Except where a Finance Document specifically provides otherwise, no Agent is obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party. |
(e) |
If an Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it must promptly notify the other Finance Parties. |
(f) |
If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than an Administrative Party) under this Agreement, it must promptly notify the other Finance Parties. |
(g) |
The Facility Agent must keep a record of all Parties and supply the Company with a copy of the record on request (provided that the Company shall not request a copy of the record more frequently than once per calendar quarter). The record will include each Lender’s Facility Office(s) and contact details for the purposes of this Agreement. |
(h) |
Each Agent has only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is a party (and no others will be implied). |
28.4 |
Role of the Arranger |
Except where a Finance Document specifically provides otherwise the Arranger shall not have any obligations of any kind to any other Party under or in connection with any Finance Document.
28.5 |
No Fiduciary Duties |
(a) |
Nothing in any Finance Document makes: |
(i) |
an Administrative Party (other than the Security Agent) a trustee or fiduciary of any other person; or |
(ii) |
the Security Agent an agent, trustee or fiduciary of any Obligor. |
(b) |
No Administrative Party will be bound to account to any other Finance Party or (in the case of the Security Agent) any Secured Party for any sum or the profit element of any sum received by it for its own account. |
28.6 |
Business with the Group |
(a) |
Each Administrative Party may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group or its related entities. |
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(b) |
If it is also a Lender, each Administrative Party has the same rights and powers under the Finance Documents as any other Lender and may exercise those rights and powers as though it were not an Administrative Party. |
(c) |
Each Administrative Party may carry on any business with any member of the Group or its related entities (including acting as an agent or a trustee in connection with any other financing). |
28.7 |
Rights and Discretions |
(a) |
Each Agent may: |
(i) |
rely on any representation, communication, notice or document (including, without limitation, any notice given by a Lender pursuant to paragraphs (b) or (c) of Clause 26.2 (Disenfranchisement on Debt Purchase Transactions Entered into by Affiliates)) believed by it to be genuine, correct and appropriately authorised; |
(ii) |
assume that: |
(A) |
any instructions it receives from the Majority Lenders, any Finance Party or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and |
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and |
(iii) |
without prejudice to the generality of paragraph (ii) above, rely on a certificate from any person: |
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or |
(B) |
to the effect that the person approves of any particular dealing, transaction, step, action or thing, |
as sufficient evidence that that is the case and, in the case of paragraph (A)above, may assume the truth and accuracy of that certificate.
(b) |
Each Agent may assume (unless it has received notice to the contrary in its capacity as Agent) that: |
(i) |
no Default has occurred (unless, in the case of the Facility Agent, it has actual knowledge of a Default arising under Clause 23.2 (Non-Payment)); |
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; |
(iii) |
any notice or request made by the Company (other than a Utilisation Request or Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors; and |
(iv) |
no Notifiable Debt Purchase Transaction: |
(A) |
has been entered into; |
(B) |
has been terminated; or |
(C) |
has ceased to be with a Sponsor Affiliate. |
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(c) |
Each Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts selected by it (including those representing a Party other than that Agent). |
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, each Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to that Agent (and so separate from any lawyers instructed by the Lenders) if that Agent, in its reasonable opinion, deems this to be necessary. |
(e) |
Each Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by that Agent or by any other Party and whether or not containing a limit on liability by reference to monetary cap or otherwise) and will not be liable for any cost, loss or liability whatsoever any person incurs or any diminution in value arising as a result of that Agent so relying. |
(f) |
Each Administrative Party may act in relation to the Finance Documents through its officers, employees and agents and no Administrative Party shall be: |
(i) |
liable for any error of judgment made by any person; or |
(ii) |
bound to supervise, or in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person, |
unless such error or such loss was directly caused by that Administrative Party’s gross negligence or wilful misconduct.
(g) |
Except where a Finance Document specifically provides otherwise, each Agent may disclose to any other Party any information it reasonably believes it has received as Agent under the Finance Documents. |
(h) |
Notwithstanding any other provision of any Finance Document to the contrary: |
(i) |
no Administrative Party is obliged to do or omit to do anything (including disclosing any information) if it would, or might in its opinion, constitute or might constitute a breach of any law of any state or jurisdiction (including, but not limited to, to the US or any jurisdiction forming part of it, or England & Wales) or any directive or regulation of any agency of any state or jurisdiction or a breach of a fiduciary duty or duty of confidentiality or otherwise be actionable by any person; and |
(ii) |
an Administrative Party may do anything which, in its opinion, is necessary or desirable to comply with any such law, directive or regulation. |
(i) |
Notwithstanding any other provision of any Finance Document to the contrary, no Administrative Party is obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of those funds or adequate indemnity against, or security for, that risk or liability is not reasonably assured to it. |
28.8 |
Responsibility for Documentation |
(a) |
No Administrative Party is responsible or liable for: |
(i) |
the adequacy, accuracy or completeness of any statement or information (whether oral or written) made, given or supplied by any person in or in connection with any Finance Document or the transactions contemplated by the Finance Documents or any other agreement, arrangement or document |
115
entered into, made or executed in anticipation of, under or in connection with any Finance Document;
(ii) |
the legality, validity, effectiveness, adequacy, completeness or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document (including, without limitation, obtaining any license, consent or other authority in connection therewith); or |
(iii) |
any determination as to whether any information provided or to be provided to any Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise. |
(b) |
Except as provided above, no Agent has any duty: |
(i) |
either initially or on a continuing basis to provide any Lender with any credit or other information concerning the risks arising under or in connection with the Finance Documents (including any information relating to the financial condition or affairs of any Obligor or its related entities or the nature or extent of recourse against any Party or its assets) whether coming into its possession before, on or after the date of this Agreement; or |
(ii) |
unless specifically requested to do so by a Lender in accordance with a Finance Document, to request any certificate or other document from any Obligor. |
28.9 |
No Duty to Monitor |
No Agent is obliged to monitor or enquire as to:
(a) |
whether a Default has occurred; |
(b) |
the performance, default or any breach by any Party of its obligations under any Finance Document; or |
(c) |
whether any other event specified in any Finance Document has occurred. |
28.10 |
Exclusion of Liability |
(a) |
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of any Administrative Party or any Receiver or Delegate), no Administrative Party, Receiver or Delegate will be liable (whether in contract, tort or otherwise) for: |
(i) |
any cost, loss or liability whatsoever any person incurs or any diminution in value arising as a result of the Administrative Party, Receiver or Delegate taking or not taking any action under or in connection with any Finance Document, unless directly caused by its gross negligence, wilful misconduct or fraud; |
(ii) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document or any other agreement, arrangement or document entered into or made under or in connection with, made or executed in anticipation of, any Finance Document, other than by reason of its gross negligence, wilful misconduct or fraud; |
(iii) |
any shortfall which arises on the enforcement of the Security Documents; or |
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(iv) |
without prejudice to the generality of paragraphs (i), (ii) and (iii) above, any cost, loss or liability whatsoever any person incurs or any diminution in value (whether caused by the Administrative Party’s, Receiver’s or Delegate’s negligence, gross negligence or any other category of liability whatsoever, but not including any claim based on fraud of the Administrative Party, Receiver or Delegate) arising as a result of: |
(A) |
any act, event or circumstance not reasonably within its control; or |
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction, |
including (in each case and without limitation) any such cost, loss, liability or diminution in value arising as a result of:
(1) |
nationalisation, expropriation or other governmental action; |
(2) |
any regulation, currency restriction, devaluation or fluctuation; |
(3) |
market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); |
(4) |
breakdown, failure or malfunction of any third party transport, telecommunications, computer services or other systems; |
(5) |
any natural disaster or act of God; |
(6) |
war, terrorism, insurrection or revolution; or |
(7) |
any strike or industrial action. |
(b) |
No Party (other than the relevant Administrative Party, Receiver or Delegate) may take any proceedings against any officer, employee or agent of an Administrative Party, a Receiver or a Delegate in respect of any claim it might have against that Administrative Party, Receiver or Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document. |
(c) |
Any Receiver or Delegate or any officer, employee or agent of an Administrative Party, a Receiver or a Delegate may enforce and enjoy the benefit of any Clause which expressly confers rights on it, subject to paragraph (b) of Clause 1.3 (Third Party Rights) and the provisions of the Third Parties Act. |
(d) |
No Agent, Receiver or Delegate will be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by that Agent, Receiver or Delegate if it has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by it for that purpose. |
(e)
(i) |
Nothing in this Agreement obliges any Administrative Party to: |
(A) |
perform any “know your customer” checks or other similar checks in relation to the identity of any person; or |
(B) |
check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party, |
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on behalf of any Finance Party.
(ii) |
Each Finance Party confirms to each Administrative Party that it is solely responsible for any “know your customer” checks or other similar checks it is required to carry out and that it may not rely on any statement in relation to those checks made by any Administrative Party. |
(f) |
Without prejudice to any other provision of any Finance Document excluding or limiting the liability of any Administrative Party, Receiver or Delegate, any liability of an Administrative Party, a Receiver or a Delegate arising under or in connection with any Finance Document is limited to the amount of actual loss suffered (as determined by reference to the date of that Administrative Party’s, Receiver’s or Delegate’s default or, if later, the date on which the loss arises as a result of the default) but without reference to any special conditions or circumstances known to that Administrative Party, Receiver or Delegate at any time which increase the amount of that loss. In no event will an Administrative Party, a Receiver or a Delegate be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not that Administrative Party, Receiver or Delegate was advised of the possibility of such loss or damages. |
28.11 |
Lenders’ Indemnity to the Agents |
Without limiting the liability of any Obligor under the Finance Documents, each Lender must (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately before their reduction to zero) indemnify each Agent, Receiver and Delegate against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by that Agent, Receiver or Delegate (other than by reason of that Agent’s, Receiver’s or Delegate’s gross negligence, wilful misconduct or fraud) (or, in the case of any cost, loss or liability pursuant to Clause 32.10 (Disruption to Payment Systems), notwithstanding the Facility Agent’s negligence, gross negligence or any other category of liability whatsoever, but not including any claim based on the fraud of the Facility Agent) in acting as Agent, Receiver or Delegate under the Finance Documents (unless that Agent, Receiver or Delegate has been reimbursed by an Obligor pursuant to a Finance Document).
28.12 |
Appointment and Resignation of an Agent |
(a) |
A Security Agent may be appointed with the consent of the Company and the Majority Lenders by the approved person entering into such relevant documentation to confirm (in form and substance satisfactory to the Company and the Majority Lenders) that it is bound by the terms of this Agreement as if it were the Security Agent as at the date of this Agreement. Any person so appointed will have the rights, powers, authorities and discretions (not exceeding those contemplated to be given to a security agent under or in connection with the Finance Documents contemplated in, and as at the date of, this Agreement) and the duties, obligations and responsibilities that are given or imposed by the instrument of appointment. |
(b) |
An Agent may resign and appoint one of its Affiliates (acting through an office in Europe) as its successor by giving notice to the other Finance Parties and the Company. |
(c) |
Alternatively, an Agent may, without giving reasons and without being responsible for the cost thereof, resign by giving 30 days’ notice to the other Finance Parties and the Company, in which case the Majority Lenders (after consultation with the other Finance Parties and the Company) may appoint a successor Agent. |
(d) |
If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (c) above within 20 days after notice of resignation was given, the retiring |
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Agent (after consultation with the other Finance Parties and the Company) may appoint a successor Agent (acting through an office in Europe).
(e) |
If an Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent or trustee and that Agent is entitled to appoint a successor Agent under paragraph (d) above, that Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement or any other Finance Document as Agent) agree with the proposed successor Agent amendments to this Clause and any other term of this Agreement or any other Finance Document dealing with the rights or obligations of that Agent consistent with then current market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the facility or security agency fee payable under this Agreement which are consistent with the successor Agent’s normal fee rates and those amendments will bind the Parties. |
(f) |
The retiring Agent must: |
(i) |
at its own cost, make available to the successor Agent any documents and records and provide any assistance the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents; and |
(ii) |
enter into and deliver to the successor Agent those documents and effect any registrations as may be reasonably required for the transfer or assignment of all of its rights and benefits under the Finance Documents to the successor Agent. |
(g) |
The Facility Agent’s resignation will only take effect on the appointment of a successor. |
(h) |
The Security Agent’s resignation will only take effect on: |
(i) |
the appointment of a successor; and |
(ii) |
the transfer to that successor of the Security granted to the Security Agent, |
so long as no other Finance Party has notified the Facility Agent that it is not satisfied with the creditworthiness of the proposed successor Security Agent within seven days of the Security Agent’s notification under paragraph (a) above.
(i) |
When its resignation takes effect: |
(i) |
the retiring Agent will be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (f) above and, in the case of the Security Agent, under Clause 28.23 (Winding Up of Security Arrangements)) but will remain entitled to the benefit of Clause 14.3 (Indemnity to the Facility Agent), Clause 14.4 (Indemnity to the Security Agent), Clause 24.2 (No Responsibility to Perfect Security), Clause 24.3 (Insurance by Security Agent), Clause 24.4 (Acceptance of Title) and this Clause 28; |
(ii) |
the Company must immediately pay to the retiring Agent any facility or security agency fees that have accrued for the account of the retiring Agent and no further agency fees will accrue for the account of the retiring Agent; and |
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(iii) |
any successor and each of the other Parties will have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party. |
(j) |
After consultation with the Company, the Majority Lenders may, by giving notice to an Agent, require it to resign under paragraph (c) above. In this event, that Agent must resign in accordance with paragraph (c) above. |
(k) |
The Company or, after consultation with the Company, the Majority Lenders may, by giving notice to the Facility Agent and the other Parties, replace the Facility Agent with effect on and from the date specified in the notice by appointing a successor Facility Agent (acting through an office in the UK) if either: |
(i) |
the Facility Agent fails to respond to a request under Clause 12.7(a) (FATCA Information) and the Company or a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
(ii) |
the information supplied by the Facility Agent pursuant to Clause 12.7(a) (FATCA Information) indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or |
(iii) |
the Facility Agent notifies the Company and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date, |
and, in each case, the Company or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and the Company or that Lender, by notice to the Facility Agent, requires it to resign.
28.13 |
Confidentiality |
(a) |
In acting as agent or trustee for the Finance Parties, an Agent will be regarded as acting through its agency division which will be treated as a separate entity from any other of its divisions or departments. |
(b) |
If information is (in the opinion of an Agent) received by another division or department of that Agent, it may be treated as confidential to that division or department and that Agent will not be deemed to have notice of it. |
(c) |
No Agent is obliged to disclose to any person any confidential information supplied to it by or on behalf of a member of the Group solely for the purpose of evaluating whether any waiver or amendment is required in respect of any term of the Finance Documents. |
28.14 |
Relationship with the Lenders |
(a) |
Subject to Clause 25.9 (Pro Rata Interest Settlement), the Facility Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Facility Agent’s principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office: |
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and |
(ii) |
entitled to receive and act on any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day, |
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unless it has received not less than five Business Days’ notice from that Lender to the contrary in accordance with the terms of this Agreement.
(b) |
The Facility Agent may at any time, and must if requested to do so by the Majority Lenders, convene a meeting of the Lenders. |
(c)
(i) |
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. |
(ii) |
Any such notice: |
(A) |
must contain the address and (where communication by electronic mail or other electronic means is permitted under this Agreement) electronic mail address and/or any other information required to enable the transmission of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made); and |
(B) |
will be treated as a notification of a substitute address, electronic mail address (or such other information), and department or officer, by that Lender for the purposes of the Finance Documents. |
(d) |
The Facility Agent is entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender. |
28.15 |
Credit Appraisal by the Lenders |
Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Administrative Parties that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including without limitation:
(a) |
the financial condition, status and nature of each member of the Group; |
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; |
(c) |
whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; |
(d) |
the adequacy, accuracy or completeness of any information provided by an Agent, any other Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and |
(e) |
the right or title of any person in or to, or the value or sufficiency of any part of, the Security Assets, the priority of any Security created under the Security Documents or the existence of any other Security affecting the Security Assets. |
121
28.16 |
Deduction From Amounts Payable by the Facility Agent |
If any Party owes an amount to the Facility Agent under the Finance Documents, the Facility Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Facility Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party will be regarded as having received the amount so deducted.
28.17 |
Amounts paid in error |
(a) |
If the Facility Agent pays an amount to another Party and the Facility Agent notifies that Party that such payment was an Erroneous Payment then the Party to whom that amount was paid by the Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds. |
(b) |
Neither: |
(i) |
the obligations of any Party to the Facility Agent; nor |
(ii) |
the remedies of the Facility Agent, |
(whether arising under this Clause 28.17 or otherwise) which relate to an Erroneous Payment will be affected by any act, omission, matter or thing (including, without limitation, any obligation pursuant to which an Erroneous Payment is made) which, but for this paragraph (b), would reduce, release, preclude or prejudice any such obligation or remedy (whether or not known by the Facility Agent or any other Party).
(c) |
All payments to be made by a Party to the Facility Agent (whether made pursuant to this Clause 28.17 or otherwise) which relate to an Erroneous Payment shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim. |
(d) |
In this Agreement, “Erroneous Payment” means a payment of an amount by the Facility Agent to another Party which the Facility Agent determines (in its sole discretion) was made in error. |
28.18 |
Notice Period |
Unless expressly provided to the contrary, where this Agreement specifies a minimum period of notice to be given to an Agent, that Agent may, at its discretion, accept a shorter notice period.
28.19 |
Conflict with Security Documents |
If there is any conflict between this Agreement and any Security Document with regard to instructions to, or other matters affecting, the Security Agent, this Agreement will prevail.
28.20 |
Custodians and Nominees |
The Security Agent may appoint and pay any person to act as a custodian, agent or nominee on any terms (including for the receipt of moneys) in relation to any document or asset it holds on the terms of this Agreement as the Security Agent may determine, including for the purpose of depositing with a custodian this Agreement or any other document and the Security Agent will not be bound to supervise or be in any way responsible or liable for any cost, loss or liability whatsoever any person incurs or any diminution in value arising as a result of the misconduct, omission or default of any such custodian or nominee.
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28.21 |
Delegation by the Security Agent |
(a) |
Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any rights, powers, authorities or discretions vested in it in its capacity as such. |
(b) |
That delegation may be made on any terms and conditions (including the power to sub-delegate) and subject to any restrictions that the Security Agent, Receiver or Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties. |
(c) |
No Security Agent, Receiver or Delegate will be bound to supervise, or be in any way responsible or liable for any cost, loss or liability whatsoever any person incurs or any diminution in value arising as a result of any misconduct, omission or default of any such delegate. |
28.22 |
Additional Security Agents |
(a) |
The Security Agent may appoint any person to act as a separate security agent or a co-security agent jointly with it: |
(i) |
if it considers that appointment to be in the interests of the Secured Parties; |
(ii) |
for the purpose of complying with any law, regulation or other condition in any jurisdiction; or |
(iii) |
for the purpose of enforcing any Finance Document, or obtaining or enforcing any judgment in any jurisdiction. |
(b) |
The Security Agent must notify the Company and the Finance Parties before making any appointment. |
(c) |
Any appointment will only be effective if the person appointed confirms to the Security Agent and the Company in form and substance satisfactory to the Security Agent that it is bound by the terms of this Agreement as if it were the Security Agent. |
(d) |
Any person appointed will have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the duties, obligations and responsibilities that are given or imposed by the instrument of appointment. |
(e) |
The Security Agent may remove any person appointed and may appoint a new separate security agent or co-security agent in its place. |
(f) |
The remuneration that the Security Agent may pay to any person appointed, and any costs and expenses incurred by that person in performing its functions pursuant to that appointment will, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent. |
28.23 |
Winding Up of Security Arrangements |
If the Security Agent, with the approval of the Facility Agent, determines that:
(a) |
all obligations and liabilities secured by the Security Documents have been fully and finally discharged; and |
(b) |
no Secured Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Obligor pursuant to the Finance Documents, |
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then:
(i) |
the trusts set out in this Agreement will be wound up and the Security Agent will release, without recourse or warranty, all of the Security created under the Security Documents and the rights of the Security Agent under each of the Security Documents; and |
(ii) |
any Security Agent which has resigned pursuant to Clause 28.12 (Appointment and Resignation of an Agent) will release, without recourse or warranty, all of its rights under each Security Document. |
28.24 |
Powers Supplemental to Trustee Acts |
The rights, powers, authorities and discretions given to the Security Agent under or in connection with the Finance Documents are supplemental to the Trustee Act 1925 and the Trustee Act 2000 and in addition to any rights, powers, authorities and discretions which may be vested in the Security Agent by law or otherwise.
28.25 |
Disapplication of Trustee Acts |
Section 1 of the Trustee Act 2000 does not apply to the duties of the Security Agent in relation to the trusts constituted by this Agreement. Where there are any inconsistencies between the Trustee Act 1925 or the Trustee Act 2000 and the provisions of the Finance Documents, the provisions of the Finance Documents will, to the extent permitted by law, prevail and, in the case of any inconsistency with the Trustee Act 2000, the provisions of the Finance Documents constitute a restriction or exclusion for the purposes of that Act.
28.26 |
Security Agent – Miscellaneous |
(a) |
Without prejudice to the generality of any other provision of this Agreement or any other Security Document, the entry into possession of the Security Assets shall not render the Security Agent or any Receiver liable to account as mortgagee in possession thereunder (or its equivalent in any other applicable jurisdiction) or take any action which would expose it to any liability in respect of any Environmental Claims in respect of which it has not been indemnified and/or secured and/or pre- funded to its satisfaction or to be liable for any loss on realisation or for any default or omission on realisation or for any default or omission for which a mortgagee in possession might be liable unless such loss, default or omission is caused by its own gross negligence or wilful default. |
(b) |
The Security Agent, a Receiver or any Delegate shall not be bound to take any steps to ascertain whether any event, condition or act, the happening of which would cause a right or remedy to become exercisable by the Security Agent, a Receiver or any Delegate under the Finance Documents has happened or to monitor or supervise the observance and performance by the Obligors, any agent or any of the other parties thereto of their respective obligations thereunder and, until it shall have actual knowledge or express notice to the contrary, the Security Agent, a Receiver or any Delegate shall be entitled to assume that no such event, condition or act has happened and that the Obligors, the agents and the other parties thereto are observing and performing all their respective obligations thereunder. |
(c) |
The Security Agent shall have no responsibility whatsoever to the Facility Agent or any Secured Party as regards any deficiency which might arise because the Security Agent is subject to any Tax in respect of all or any of the Security Assets, the income therefrom or the proceeds thereof and it shall have no obligation to make any payment, deduction or withholding in respect of tax as a result of holding or enforcing any Security. |
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29. |
Application of Proceeds |
29.1 |
Order of Application |
Subject to Clause 29.2 (Prospective Liabilities), all amounts from time to time received or recovered by the Security Agent or any Receiver or Delegate pursuant to the terms of any Finance Document or in connection with the realisation or enforcement of all or any part of any security created by the Security Documents (for the purposes of this Clause, the “Recoveries”) will be held by the Security Agent in accordance with Clause 24.1 (Security Agent as Holder of Security) to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause), in the following order:
(a) |
in or towards payment of any sums owing to the Security Agent, any Receiver or any Delegate; |
(b) |
in or towards payment of all costs and expenses incurred by any Secured Party (other than to the extent recovered under paragraph (a) above) in connection with any realisation or enforcement of the Security Documents in accordance with the terms of the Finance Documents; and |
(c) |
in payment to the Facility Agent for application in accordance with this Agreement. |
29.2 |
Prospective Liabilities |
After enforcement of any security created by the Security Documents, the Security Agent may, in its discretion, hold any amount of the Recoveries in one or more interest bearing suspense or impersonal accounts in the name of the Security Agent with any financial institution (including itself or any other Finance Party) and for so long as the Security Agent thinks fit (the interest being credited to the relevant account) for later application under Clause 29.1 (Order of Application) in respect of:
(a) |
any sum payable to the Security Agent, any Receiver or any Delegate; and |
(b) |
any part of the obligations and liabilities secured by the Security Documents, |
that the Security Agent reasonably considers, in each case, might become due or owing at any time in the future.
29.3 |
Investment of Proceeds |
Except as otherwise provided in any Security Document, the Security Agent may:
(a) |
invest any Recoveries in the name of, or under the control of, the Security Agent in any investment for the time being authorised by English law for the investment by trustees of trust money or in any other investments which may be selected by the Security Agent with the consent of the Majority Lenders; or |
(b) |
place any Recoveries on deposit in the name of, or under the control of, the Security Agent at any bank or institution (including itself or any other Finance Party) and on such terms as the Security Agent may agree and if it places it on deposit with itself, it shall only be liable for standard amount of interest that would have been payable by it to an independent customer on a deposit of similar tenor and amount. |
29.4 |
Currency Conversion |
(a) |
For the purpose of, or pending the discharge of, any of the obligations and liabilities secured by the Security Documents, the Security Agent may convert any moneys it receives or recovers from one currency to another, at a market rate of exchange. |
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(b) |
The obligations of any Obligor to pay in the due currency may only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion. |
29.5 |
Permitted Deductions |
The Security Agent may, in its discretion:
(a) |
set aside by way of reserve amounts required to meet, and make and pay, any deductions and withholdings (on account of Taxes or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement; and |
(b) |
pay all Taxes which may be assessed against it in respect of any of the assets subject to a Security under the Security Documents, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent, under any of the Finance Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement). |
29.6 |
Good Discharge |
(a) |
Any payment to be made in respect of the obligations and liabilities secured by the Security Documents by the Security Agent may be made to the Facility Agent on behalf of the Finance Parties and any payment made in that way will be a good discharge, to the extent of that payment, by the Security Agent. |
(b) |
The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) above in the same currency as that in which the obligations and liabilities owing to the relevant Finance Party are denominated. |
30. |
Conduct of Business by the Finance Parties |
No provision of any Finance Document will:
(a) |
interfere with the right of any Finance Party to arrange its affairs (Tax or otherwise) in whatever manner it thinks fit; |
(b) |
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or |
(c) |
oblige any Finance Party to disclose any information relating to its affairs (Tax or otherwise) or any computations in respect of Tax. |
31. |
Sharing among the Finance Parties |
31.1 |
Payments to Finance Parties |
If a Finance Party (a “Recovering Finance Party”) receives or recovers any amount from an Obligor other than in accordance with Clause 32 (Payment Mechanics) and applies that amount to a payment due under a Finance Document then:
(a) |
the Recovering Finance Party must, within three Business Days, notify details of the receipt or recovery to the Facility Agent; |
(b) |
the Facility Agent must determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have received had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with |
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Clause 32 (Payment Mechanics), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
(c) |
the Recovering Finance Party must pay to the Facility Agent an amount (the “Sharing Payment”) equal to that receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 32.5 (Partial Payments). |
31.2 |
Redistribution of Payments |
The Facility Agent must treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) (the “Sharing Finance Parties”) in accordance with Clause 32.5 (Partial Payments) towards the obligations of that Obligor to the Sharing Finance Parties.
31.3 |
Recovering Finance Party’s Rights |
(a) |
On a distribution by the Facility Agent under Clause 31.2 (Redistribution of Payments) the Recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared in that redistribution. |
(b) |
If and to the extent that the Recovering Finance Party is not able to rely on its rights under paragraph (a) above, the relevant Obligor will owe the Recovering Finance Party a debt equal to the Sharing Payment which is immediately due and payable. |
31.4 |
Reversal of Redistribution |
If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:
(a) |
each Sharing Finance Party must, on request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the “Redistributed Amount”); |
(b) |
at the time of the request by the Facility Agent under paragraph (a) above, the Sharing Finance Party will be subrogated to the rights of the Recovering Finance Party in respect of the relevant Redistributed Amount; and |
(c) |
if and to the extent that the Sharing Finance Party is not able to rely on its rights under paragraph (b) above as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor. |
31.5 |
Exceptions |
(a) |
This Clause will not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor. |
(b) |
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if: |
(i) |
it notified that other Finance Party of the legal or arbitration proceedings; and |
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(ii) |
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings. |
32. |
Payment Mechanics |
32.1 |
Payments to the Facility Agent |
(a) |
On each date on which a Party is required to make a payment to the Facility Agent under a Finance Document, that Party must make the payment available to the Facility Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Facility Agent to the Party concerned as being customary at the time for settlement of transactions in the relevant currency in the place of payment. |
(b) |
Unless a Finance Document specifies that payments under it are to be made in another manner, each payment must be made to such account in New York and with such bank as the Facility Agent specifies. |
32.2 |
Distributions by the Facility Agent |
Each payment received by the Facility Agent under the Finance Documents for another Party must, except as provided in this Clause, be paid by the Facility Agent to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office) as soon as reasonably practicable after receipt, to such account in New York and with such bank as that Party may notify to the Facility Agent by not less than five Business Days’ notice.
32.3 |
Distributions to an Obligor |
The Facility Agent may (with the consent of an Obligor or in accordance with Clause 33 (Set-Off)) apply any amount received by it for that Obligor in or towards payment (as soon as reasonably practicable after receipt) of any amount due from that Obligor under the Finance Documents. For this purpose the Facility Agent may apply the received sum in or towards the purchase of any amount of any currency to be paid.
32.4 |
Clawback and Pre-Funding |
(a) |
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum. |
(b) |
If the Facility Agent or its Affiliate or Representative on its behalf or direction (the Facility Agent and its applicable Affiliate or Representative, a “Facility Agent Entity”) pays an amount to another Party (unless paragraph (c) below applies) or, at the direction of such Party, that Party’s Affiliate, Related Fund or Representative (such Party and its applicable Affiliate, Related Fund or Representative, an “Other Party Entity”) and it proves to be the case (in the sole determination of the Facility Agent) that (i) neither the Facility Agent nor the applicable Facility Agent Entity actually received that amount or (ii) such amount was otherwise paid in error (whether such error was known or ought to have been known to such other Party or applicable Other Party Entity), then the Party to whom that amount (or the proceeds of any related exchange contract) was paid (or on whose direction its applicable Other Party Entity was paid) by the applicable Facility Agent Entity shall hold such amount on trust or, to the extent not possible as a matter of law, for the account (or will procure that its |
128
applicable Other Party Entity holds on trust or for the account) of the Facility Agent Entity and on demand (or will procure that its applicable Other Party Entity shall) refund the same to the Facility Agent Entity together with interest on that amount from the date of payment to the date of receipt by the Facility Agent Entity, calculated by the Facility Agent to reflect its cost of funds.
(c) |
If the Facility Agent is willing to make available amounts for the account of the Company before receiving funds from the Lenders, then if and to the extent that the Facility Agent does so but it proves (in the sole determination of the Facility Agent) to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Company: |
(i) |
the Facility Agent must notify the Company promptly of that Lender’s identity and the Company must hold such amount on trust or, to the extent not possible as a matter of law, for the account, of the Facility Agent and on demand refund it to the Facility Agent; and |
(ii) |
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Company must on demand pay to the Facility Agent the amount (as certified by the Facility Agent) which will indemnify the Facility Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender. |
32.5 |
Partial Payments |
(a) |
If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Facility Agent must apply that payment towards the obligations of that Obligor under the Finance Documents in the following order: |
(i) |
first, in or towards payment pro rata of any unpaid amount owing to the Administrative Parties, any Receiver or any Delegate under the Finance Documents; |
(ii) |
secondly, in or towards payment pro rata of any accrued interest, fees or commission due but unpaid under this Agreement; |
(iii) |
thirdly, in or towards payment pro rata of any principal sum due but unpaid under this Agreement; and |
(iv) |
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents. |
(b) |
The Facility Agent must, if so directed by all the Lenders, vary the order set out in paragraphs (a)(ii) to (a)(iv) above. |
(c) |
Paragraphs (a) and (b) above will override any appropriation made by an Obligor. |
32.6 |
No Set-Off by Obligors |
All payments to be made by an Obligor under the Finance Documents will be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
32.7 |
Business Days |
(a) |
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day will be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not). |
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(b) |
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date. |
32.8 |
Currency of Account |
(a) |
Unless a Finance Document specifies otherwise, USD is the currency of account and payment for any sum due from an Obligor under any Finance Document. |
(b) |
Each payment in respect of costs, expenses or Taxes must be made in the currency in which the costs, expenses or Taxes are incurred. |
(c) |
Any amount expressed to be payable in a currency other than USD will be paid in that other currency. |
32.9 |
Change of Currency |
(a) |
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then: |
(i) |
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country will be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent (after consultation with the Company); and |
(ii) |
any translation from one currency or currency unit to another will be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Facility Agent (acting reasonably). |
(b) |
If a change in any currency of a country occurs (including where there is more than one currency or currency unit recognised at the same time as the lawful currency of a country), the Finance Documents will, to the extent the Facility Agent (acting reasonably and after consultation with the Company) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Market and otherwise reflect the change in currency. |
32.10 |
Disruption to Payment Systems |
(a) |
If the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the Facility Agent is notified by the Company that a Disruption Event has occurred: |
(i) |
the Facility Agent may, and must if requested to do so by the Company, consult with the Company with a view to agreeing with the Company such changes to the operation or administration of the Facility as the Facility Agent may decide are necessary in the circumstances; |
(ii) |
the Facility Agent is not obliged to consult with the Company in relation to any changes if, in its opinion, it is not practicable to do so in the circumstances and, in any event, is not obliged to agree to any changes; and |
(iii) |
the Facility Agent may consult with the Finance Parties in relation to any changes but is not obliged to do so if, in its opinion, it is not practicable to do so in the circumstances. |
(b) |
Any agreement between the Facility Agent and the Company will (whether or not it is finally determined that a Disruption Event has occurred) be binding on the Parties as |
130
an amendment to (or, as the case may be, a waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 38 (Amendments and Waivers).
(c) |
Notwithstanding any other provision of this Agreement, the Facility Agent will not be liable (whether in contract, tort or otherwise and whether caused by the Facility Agent’s negligence, gross negligence or any other category of liability whatsoever, but not including any claim based on the fraud of the Facility Agent) for any cost, loss or liability whatsoever any person incurs or any diminution in value arising as a result of the Facility Agent taking or not taking any action under or in connection with this Clause 32.10 (Disruption to Payment Systems). |
(d) |
The Facility Agent must notify the Finance Parties promptly of all changes agreed pursuant to paragraph (b) above. |
32.11 |
Timing of Payments |
If a Finance Document does not provide for when a particular payment is due, that payment will be due within three Business Days of demand by the person to whom the payment is to be made (or, if that person is a Finance Party, the Facility Agent).
33. |
Set-Off |
A Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
34. |
Notices |
34.1 |
Communications in Writing |
Any communication to be made under or in connection with the Finance Documents must be made in writing and, unless otherwise stated, may be made by email or letter.
34.2 |
Addresses |
(a) |
Except as provided below, the contact details of each Party for any communication to be made or delivered under or in connection with the Finance Documents are those notified by that Party for this purpose to the Facility Agent on or before the date it becomes a Party. |
(b) |
The contact details of the Company for this purpose are: |
Address: |
1 Cathedral Piazza |
Email: |
Patrick.fegaly@ihstowers.com |
Attention: |
Patrick Fegaly, Talin Shah, Yoni Conway |
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(c) |
The contact details of the Facility Agent for this purpose are: |
Address: |
Floor 5, 1 Basinghall Avenue, London EC2V 5DD, United Kingdom |
Email: |
Tony.Pinches@sc.com / RaviKumar.Eswar@sc.com |
Attention: |
Tony Pinches / Ravi Kumar Eswar |
(d) |
Any Party may change its contact details by giving five Business Days’ notice to the Facility Agent or (in the case of the Facility Agent) to the other Parties. |
34.3 |
Delivery |
(a) |
Except as provided below, any communication made or delivered by one Party to another under or in connection with the Finance Documents will only be effective: |
(i) |
if by way of email, when received in legible form; or |
(ii) |
if by way of registered mail or courier, when it has been delivered at the relevant address, |
and, if a particular department or officer is specified as part of its address details provided under Clause 34.2 (Addresses), if addressed to that department or officer.
(b) |
Any communication to be made or delivered to an Agent will be effective only when actually received by that Agent, in accordance with paragraph (a) above. |
(c) |
All communications from or to an Obligor must be sent through the Facility Agent. |
(d) |
All communications from or to an Obligor (other than the Company) must be sent through the Company. |
(e) |
Each Obligor (other than the Company) irrevocably appoints the Company to act as its agent: |
(i) |
to give and receive all communications under or in connection with the Finance Documents; |
(ii) |
to exercise any rights or discretions on its behalf under the Finance Documents; |
(iii) |
to supply all information concerning itself to any Finance Party; and |
(iv) |
to sign all documents on its behalf under or in connection with the Finance Documents. |
(f) |
Any communication made or delivered to the Company in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors. |
(g) |
Each Finance Party may assume that any communication made by the Company (or by the Company on behalf of an Obligor) is made with the consent of each other Obligor. |
(h) |
Any communication which would otherwise become effective on a non-working day or after 5 pm (London time) in the place of receipt will be deemed only to become effective on the next working day in that place. |
34.4 |
Notification of Address and E-mail Address |
Promptly on the change of a Party’s (a “Relevant Party”) contact details, the Relevant Party must notify:
(a) |
the Company; |
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(b) |
the Facility Agent; and |
(c) |
(if the Relevant Party is the Company or an Agent) each Party other than the Relevant Party. |
34.5 |
Electronic Communication |
(a) |
Any communication to be made between any of the Parties under or in connection with the Finance Documents may be made by electronic means (including, without limitation, by way of posting to a secure website), if the relevant Parties: |
(i) |
notify each other in writing of any information required to enable the transmission of information by that means; and |
(ii) |
notify each other of any change to any other such information supplied by them. |
(b) |
Any electronic communication as specified in paragraph (a) above to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two parties agree that, unless and until notified to the contrary, this is an accepted form of communication. |
(c) |
For the purposes of the Finance Documents, an electronic communication will be treated as being in writing. |
(d) |
Any electronic communication as specified in paragraph (a) above made between the Parties will be effective only when actually received (or made available) in readable form and in the case of any electronic communication made by a Party to an Agent only if it is addressed in such a manner as that Agent may specify for this purpose. |
(e) |
Any electronic communication which would otherwise become effective on a non-working day or after business hours in the place in which the Party to whom the relevant communication is sent or made available has its address for the purposes of this Agreement will be deemed only to become effective on the next working day in that place. |
(f) |
Any reference in a Finance Document to a communication being sent or received will be construed to include that communication being made available in accordance with this Clause 34.5 (Electronic Communication). |
34.6 |
English Language |
(a) |
Any communication made under or in connection with any Finance Document must be in English. |
(b) |
All other documents provided under or in connection with any Finance Document must be: |
(i) |
in English; or |
(ii) |
if not in English, and if so required by the Facility Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document. |
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35. |
Calculations and Certificates |
35.1 |
Accounts |
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.
35.2 |
Certificates and Determinations |
Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.
35.3 |
Day Count Convention and Interest Calculation |
(a) |
Any interest, commission or fee accruing under a Finance Document will accrue from day to day and the amount of any such interest, commission or fee is calculated: |
(i) |
on the basis of the actual number of days elapsed and a year of 360 days (or, in any case where the practice in the Relevant Market differs, in accordance with that market practice); and |
(ii) |
subject to paragraph (b) below, without rounding. |
(b) |
The aggregate amount of any accrued interest, commission or fee which is or becomes payable by an Obligor under a Finance Document shall be rounded to 2 decimal places. |
36. |
Partial Invalidity |
If, at any time, any term of a Finance Document is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, that will not affect:
(a) |
the legality, validity or enforceability in that jurisdiction of any other term of any Finance Document; or |
(b) |
the legality, validity or enforceability in other jurisdictions of that or any other term of any Finance Document. |
37. |
Remedies and Waivers |
No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under a Finance Document will operate as a waiver, nor will any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Finance Document are cumulative and not exclusive of any rights or remedies provided by law and may be waived only in writing and specifically.
38. |
Amendments and Waivers |
38.1 |
Required Consents |
(a) |
Except as provided in this Clause 38, any term of or any right or remedy under a Finance Document may be amended or waived only with the consent of the Company and the Majority Lenders and any such amendment or waiver will be binding on all the Parties. |
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(b) |
The Facility Agent or, where applicable, the Security Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause. The relevant Agent must notify the other Parties promptly of any amendment or waiver effected by it under this paragraph. |
(c) |
Each Obligor agrees to any amendment or waiver permitted by this Clause which is agreed to by the Company. |
38.2 |
All Lender Matters |
Subject to Clause 38.4 (Changes to Reference Rates), an amendment or waiver of any term of or any right or remedy under a Finance Document that has the effect of changing or which relates to:
(a) |
the definition of “Majority Lenders”; |
(b) |
an extension of the date of payment of any scheduled amount to or for the account of a Lender under the Finance Documents, except as agreed by an individual Lender in respect of its Commitment or participation in any Loan; |
(c) |
a release of any Security created pursuant to a Security Document other than in accordance with the terms of the Finance Documents; |
(d) |
a redenomination of a Commitment into another currency; |
(e) |
a reduction in the Margin or a reduction in the amount or change in currency of any payment of principal, interest, fee or other amount payable to or for the account of a Lender under the Finance Documents, except as agreed by an individual Lender in respect of its Commitment or participation in any Loan; |
(f) |
an increase in any Commitment or the Total Commitments or an extension of the Availability Period or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the Facility; |
(g) |
changes to the Obligors otherwise than as permitted under this Agreement; |
(h) |
the definition of Anti-Corruption Laws, Clause 18.21 (Anti-Bribery and Corruption Laws) or Clause 22.5 (Anti-Bribery and Corruption and Anti-Money Laundering); |
(i) |
the definition of Restricted Party, Sanctioned Country, Sanctions or Sanctions List, Clause 7.4 (Mandatory Prepayment – Sanctions Etc.), Clause 18.20 (Sanctions) or Clause 22.4 (Sanctions); |
(j) |
(other than as expressly permitted by the provisions of any Finance Document): |
(i) |
the nature or scope of the guarantee and indemnity granted under Clause 16 (Guarantee and Indemnity) and under the Nigeria Guarantee; |
(ii) |
the manner in which the proceeds of enforcement of any Security created pursuant to the Security Documents are distributed; and |
(iii) |
the release of any guarantee and indemnity granted under Clause 16 (Guarantee and Indemnity) and under the Nigeria Guarantee; |
(k) |
any provision of a Finance Document which expressly requires the consent of all the Lenders; or |
(l) |
Clause 7.1 (Mandatory Prepayment – Illegality), the definition of Permitted Transferee set out in Clause 7.2 (Mandatory Prepayment – Change of Control), Clause 25 |
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(Changes to the Lenders), Clause 31 (Sharing Among the Finance Parties), Clause 42 (Governing Law), Clause 43.2 (Jurisdiction of English Courts) or this Clause,
shall not be made without the prior consent of all the Lenders.
38.3 |
Other Exceptions |
(a) |
The Security Documents may be amended, varied, waived or modified with the agreement of the relevant security provider and the Security Agent. |
(b) |
An amendment or waiver which relates to the rights or obligations of the Facility Agent, the Arranger or the Security Agent (each in their capacity as such) may not be effected without the consent of the Facility Agent, the Arranger or the Security Agent (as applicable). |
(c) |
Notwithstanding Clause 38.2 (All Lender Matters), a Fee Letter may be amended or waived with the agreement of each Administrative Party that is a party to that Fee Letter and the Company. |
(d) |
The Facility Agent may agree with the Company at any time any amendment to or modification of a name or other details of an Original Lender as set out in Part 1 of Schedule 1 (The Parties) which is technical in nature or which is necessary to correct a manifest error. |
38.4 |
Changes to Reference Rates |
(a) |
Subject to Clause 38.3 (Other exceptions), if a Published Rate Replacement Event has occurred in relation to any Published Rate, any amendment or waiver which relates to: |
(i) |
providing for the use of a Replacement Reference Rate in place of that Published Rate; and |
(ii)
(A) |
aligning any provision of any Finance Document to the use of that Replacement Reference Rate; |
(B) |
enabling that Replacement Reference Rate to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Reference Rate to be used for the purposes of this Agreement); |
(C) |
implementing market conventions applicable to that Replacement Reference Rate; |
(D) |
providing for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate; or |
(E) |
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Reference Rate (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation), |
may be made with the consent of the Facility Agent (acting on the instructions of the Majority Lenders) and the Obligors.
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(b) |
If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within 10 Business Days (or such longer time period in relation to any request which the Company and the Facility Agent may agree) of that request being made: |
(i) |
its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the Facility when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and |
(ii) |
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request. |
(c) |
In this Clause 38.4: |
“Published Rate” means:
(a) |
SOFR; |
(b) |
the Term SOFR for any Quoted Tenor. |
“Published Rate Replacement Event” means, in relation to a Published Rate:
(a) |
the methodology, formula or other means of determining that Published Rate has, in the opinion of the Majority Lenders and the Obligors, materially changed; |
(b)
(i)
(A) |
the administrator of that Published Rate or its supervisor publicly announces that such administrator is insolvent; or |
(B) |
information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Published Rate is insolvent, |
provided that, in each case, at that time, there is no successor administrator to continue to provide that Published Rate;
(ii) |
the administrator of that Published Rate publicly announces that it has ceased or will cease to provide that Published Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Published Rate; |
(iii) |
the supervisor of the administrator of that Published Rate publicly announces that such Published Rate has been or will be permanently or indefinitely discontinued; or |
(iv) |
the administrator of that Published Rate or its supervisor announces that that Published Rate may no longer be used; or |
(c) |
the administrator of that Published Rate (or the administrator of an interest rate which is a constituent element of that Published Rate) determines that that Published Rate should be calculated in accordance with its reduced submissions or other contingency or fallback policies or arrangements and either: |
137
(i) |
the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Lenders and the Obligors) temporary; or |
(ii) |
that Published Rate is calculated in accordance with any such policy or arrangement for a period no less than one Month; or |
(d) |
in the opinion of the Majority Lenders and the Obligors, that Published Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement. |
“Quoted Tenor” means, in relation to Term SOFR, any period for which that rate is customarily displayed on the relevant page or screen of an information service.
“Relevant Nominating Body” means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
“Replacement Reference Rate” means a reference rate which is:
(a) |
formally designated, nominated or recommended as the replacement for a Published Rate by: |
(i) |
the administrator of that Published Rate (provided that the market or economic reality that such reference rate measures is the same as that measured by that Published Rate ); or |
(ii) |
any Relevant Nominating Body, |
and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the “Replacement Reference Rate” will be the replacement under paragraph (ii) above;
(b) |
in the opinion of the Majority Lenders and the Obligors, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Published Rate; or |
(c) |
in the opinion of the Majority Lenders and the Obligors, an appropriate successor to a Published Rate. |
38.5 |
Disenfranchisement of Defaulting Lenders |
(a) |
In ascertaining the Majority Lenders or whether any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents, a Defaulting Lender’s Commitments and participations will be zero. |
(b) |
For the purposes of this Clause 38.4(a), the Facility Agent may assume that the following Lenders are Defaulting Lenders: |
(i) |
any Lender which has notified the Facility Agent that it has become a Defaulting Lender; and |
(ii) |
any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraph (a), (b) or (c) of the definition of “Defaulting Lender” has occurred, |
unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Facility Agent) or the Facility Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.
138
(c) |
For the avoidance of doubt, the Facility Agent shall not be obliged to fund any Loan or pay any sums in place of any Defaulting Lender: |
38.6 |
Replacement of a Defaulting Lender |
(a) |
The Company may, at any time a Lender has become and continues to be a Defaulting Lender, by giving five Business Days’ prior written notice to the Facility Agent and such Lender, replace such Lender by requiring such Lender to (and to the extent permitted by law, such Lender shall) transfer pursuant to Clause 25 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution or other entity (a “Replacement Lender”) selected by the Company, which (unless the replacement Lender is already a Lender or the Facility Agent is an Impaired Agent) has satisfied all the Facility Agent’s “know your client” and other similar checks, which confirms its willingness to assume and does assume all the obligations or all the relevant obligations of the transferring Lender (including the assumption of the transferring Lender’s participations or unfunded participations (as the case may be) on the same basis as the transferring Lender) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest, Break Costs and other amounts payable in relation thereto under the Finance Documents. |
(b) |
Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause 38.6 shall be subject to the following conditions: |
(i) |
neither the Facility Agent nor the Defaulting Lender shall have any obligation to the Company to find a Replacement Lender; |
(ii) |
the transfer must take place no later than 60 days after the notice referred to in paragraph (a) above; |
(iii) |
in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents; and |
(iv) |
the Lender shall only be obliged to transfer its rights and obligations pursuant to this paragraph (b) once it has complied with (acting reasonably) all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer. |
38.7 |
Excluded Commitments |
If any Lender fails to respond to a request for a consent, waiver, amendment of or in relation to any term of any Finance Document or any other vote of Lenders under the terms of this Agreement within 15 Business Days (unless the Company and the Facility Agent agree to a longer time period in relation to any request) of that request being made:
(a) |
its Commitment(s) shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments has been obtained to approve that request; and |
(b) |
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request. |
139
39. |
Confidential Information |
39.1 |
Confidentiality |
(a) |
Each Finance Party must keep all Confidential Information confidential and not disclose it to any person, save to the extent permitted by Clause 39.2 (Disclosure of Confidential Information) and Clause 39.3 (Disclosure to Numbering Service Providers). |
(b) |
Each Finance Party must ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information. |
39.2 |
Disclosure of Confidential Information |
Any Finance Party may disclose:
(a) |
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, insurers, insurance brokers, auditors, partners, service providers, Representatives and professional advisers of such Representatives such Confidential Information as that Finance Party considers appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there is no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information; |
(b) |
subject to Clause 25.2 (Conditions of Assignment or Transfer), as applicable, to any person: |
(i) |
to (or through) whom it assigns, transfers or novates (or may potentially assign, transfer or novate) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as an Administrative Party and, in each case, to any of that person’s Affiliates, Related Funds, Representatives, professional advisers and agents; |
(ii) |
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person’s Affiliates, Related Funds, Representatives, professional advisers and agents; |
(iii) |
appointed by any Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (c) of Clause 28.14 (Relationship with the Lenders)); |
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraphs (b)(i) or (b)(ii) above; |
(v) |
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange, |
140
listing authority or similar body, or pursuant to any applicable law or regulation;
(vi) |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes; |
(vii) |
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 25.8 (Security Over Lenders’ Rights); |
(viii) |
who is a Party or a member of the Group; |
(ix) |
who is a direct or indirect provider of credit protection to any Lender; or |
(x) |
with the consent of the Company, |
in each case, such Confidential Information as that Finance Party considers appropriate if:
(A) |
in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there is no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information; |
(B) |
in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; |
(C) |
in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there is no requirement to inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances; |
(c) |
to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including, without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Company and the relevant Finance Party; and |
(d) |
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its |
141
confidential nature and that some or all of such Confidential Information may be price-sensitive information.
39.3 |
Disclosure to Numbering Service Providers |
(a) |
Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facility and/or the Company the following information: |
(i) |
the names of the Obligors; |
(ii) |
the country of domicile of the Obligors; |
(iii) |
the place of incorporation of the Obligors; |
(iv) |
the date of this Agreement; |
(v) |
the governing law of this Agreement; |
(vi) |
the names of the Facility Agent and the Arranger; |
(vii) |
the amount and name of the Facility (and any tranches); |
(viii) |
the amount of the Total Commitments; |
(ix) |
the currency of the Facility; |
(x) |
the type of the Facility; |
(xi) |
the ranking of the Facility; |
(xii) |
the Termination Date for the Facility; |
(xiii) |
changes to any of the information previously supplied pursuant to paragraphs (i) to (xii) above; and |
(xiv) |
such other information agreed between such Finance Party and the Company, |
to enable such numbering service provider to provide its usual syndicated loan numbering identification services.
(b) |
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider. |
(c) |
The Company represents that none of the information set out in paragraphs (i) to (xiv) of paragraph (a) above is unpublished price-sensitive information. |
39.4 |
Entire Agreement |
This Clause:
(a) |
constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information; and |
(b) |
supersedes any previous agreement, whether express or implied, regarding Confidential Information. |
142
39.5 |
Inside Information |
Each Finance Party acknowledges that some or all of the Confidential Information is or may be price- sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
39.6 |
Notification of Disclosure |
Each Finance Party agrees (to the extent permitted by law and regulation) to inform the Company:
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 39.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and |
(b) |
on becoming aware that Confidential Information has been disclosed in breach of this Clause. |
39.7 |
Continuing Obligations |
The obligations in this Clause are continuing and, in particular, will survive and remain binding on each Finance Party for a period of 12 months from the earlier of:
(a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and |
(b) |
the date on which such Finance Party otherwise ceases to be a Finance Party. |
40. |
Confidentiality of Funding Rates |
40.1 |
Confidentiality and Disclosure |
(a) |
The Facility Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose it to any person, save to the extent permitted by paragraphs (b) and (c) below. |
(b) |
The Facility Agent may disclose: |
(i) |
any Funding Rate to each Obligor pursuant to Clause 8.4 (Notification of Rates of Interest); and |
(ii) |
any Funding Rate to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Facility Agent and the relevant Lender. |
(c) |
The Facility Agent may disclose any Funding Rate, and the Company may disclose any Funding Rate, to: |
(i) |
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to |
143
whom that Funding Rate is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that it may be price-sensitive information except that there is no requirement to so inform the recipient if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or is otherwise bound by requirements of confidentiality in relation to it;
(ii) |
any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there is no requirement to so inform the recipient if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; |
(iii) |
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there is no requirement to so inform the recipient if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and |
(iv) |
any person with the consent of the relevant Lender, as the case may be. |
40.2 |
Related Obligations |
(a) |
The Facility Agent and each Obligor acknowledge that each Funding Rate is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Facility Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose. |
(b) |
The Facility Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender: |
(i) |
of the circumstances of any disclosure made pursuant to paragraph (c)(ii) of Clause 40.1 (Confidentiality and Disclosure) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and |
(ii) |
on becoming aware that any information has been disclosed in breach of this Clause. |
40.3 |
No Event of Default |
No Event of Default will occur under Clause 23.4 (Other Obligations) by reason only of an Obligor’s failure to comply with this Clause.
41. |
Counterparts |
Each Finance Document may be executed in any number of counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.
144
42. |
Governing Law |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
43. |
Enforcement |
43.1 |
Arbitration |
(a) |
Subject to paragraph (d) below, any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non- contractual obligation arising out of in connection with this Agreement) (a “Dispute”) shall be referred to and finally resolved by arbitration under the Arbitration Rules of the London Court of International Arbitration (LCIA) (the “Rules”). |
(b) |
In respect of the formation of arbitral tribunal, seat and language of arbitration: |
(i) |
the arbitral tribunal shall consist of three arbitrators. The Facility Agent (on behalf of the Majority Lenders) shall nominate one arbitrator; the Company shall nominate the second arbitrator, and a third arbitrator (who shall act as Chairman) shall be appointed by the arbitrators nominated by the Facility Agent (on behalf of the Majority Lenders) and the Company or, in the absence of agreement on the third arbitrator within ten Business Days of the appointment of the second arbitrator, by the LCIA Court (as defined in the Rules); |
(ii) |
the seat of arbitration shall be London, England; |
(iii) |
the language of the arbitration shall be English; and |
(iv) |
the governing law of the arbitration agreement shall be English law. |
(c) |
For the purposes of arbitration pursuant to this Clause 43.1, the Parties waive any right of application to the English courts to determine a preliminary point of law or appeal on a point of law under Sections 45 and 69 of the Arbitration Act 1996. |
(d) |
Before the Finance Parties have filed, as the case may be, a Request for Arbitration or Response (in each case, as defined in the Rules) the Facility Agent may (and shall, if so instructed by the Majority Lenders) by notice in writing to all other Parties require that all Disputes or a specific Dispute be heard by a court of law. If the Facility Agent gives such notice, the Dispute to which such notice refers shall be determined in accordance with Clause 43.2 (Jurisdiction of English Courts). |
43.2 |
Jurisdiction of English Courts |
(a) |
If the Facility Agent issues a notice pursuant to paragraph (d) of Clause 43.1 (Arbitration), the provisions of this Clause 43.2 shall apply. |
(b) |
The courts of England have exclusive jurisdiction to settle any Dispute. |
(c) |
The Parties agree that the English courts are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary. |
145
(d) |
This Clause 43.2 is for the benefit of the Finance Parties only. As a result, to the extent permitted by law: |
(i) |
no Finance Party will be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction; and |
(ii) |
the Finance Parties may take concurrent proceedings in any number of jurisdictions. |
43.3 |
Service of Process |
(a) |
Without prejudice to any other mode of service allowed under any relevant law, the Company and each Original Facility Guarantor: |
(i) |
irrevocably appoints IHS Africa (UK) Limited, 1 Cathedral Piazza, 123 Victoria Street, London, SW1E 5BP as its agent under the Finance Documents for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and |
(ii) |
agrees that failure by a process agent to notify the Company or an Original Facility Guarantor of the process will not invalidate the proceedings concerned. |
(b) |
If any person appointed as process agent under this Clause 43.3 (Service of Process) is unable for any reason so to act, the Company and each Original Facility Guarantor must immediately (and in any event within ten days of the event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another process agent for this purpose. |
44. |
Acknowledgement Regarding any Supported QFCS |
(a) |
To the extent that the Finance Documents provide support, through a guarantee or otherwise, for any agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the U.S. Special Resolution Regimes) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Finance Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States): |
(b) |
in the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Finance Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special |
146
Resolution Regime if the Supported QFC and the Finance Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(c) |
As used in this Clause 44, the following terms have the following meanings: |
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following:
(i) |
a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
(ii) |
a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
(iii) |
a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
45. |
Contractual Recognition of Bail-In |
Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
(a) |
any Bail-In Action in relation to any such liability, including (without limitation): |
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability; |
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and |
(iii) |
a cancellation of any such liability; and |
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability. |
This Agreement has been entered into on the date stated at the beginning of this Agreement.
147
Schedule 1
The Parties
Part 1
The Original Lenders
Original Lender |
|
Commitment |
|
Treaty Passport scheme |
|
Standard Chartered Bank (Singapore) Limited |
|
USD 270,000,000 |
|
67/S/376792/DTTP |
|
|
|
USD 270,000,000 |
|
|
|
148
Part 2
The Original Facility Guarantors
Name |
|
Jurisdiction of incorporation and registration |
|
IHS Netherlands Holdco B.V. |
|
The Netherlands (66017912) |
|
IHS Netherlands NG1 B.V. |
|
The Netherlands (66030390) |
|
IHS Netherlands NG2 B.V. |
|
The Netherlands (66030501) |
|
Nigeria Tower Interco B.V. |
|
The Netherlands (61341088) |
|
149
Part 3
Form of QPP Certificate
To:IHS Holding Limited as the Company
From: |
[Name of Lender] |
Dated:
IHS Holding Limited – USD 270,000,000 Credit Agreement
dated [•] (the “Agreement”)
1. |
We refer to the Agreement. This is a QPP Certificate. Terms defined in the Agreement have the same meaning in this QPP Certificate unless given a different meaning in this QPP Certificate. |
2. |
We confirm that: |
(a) |
we are beneficially entitled to all interest payable to us as a Lender under the Loan; |
(b) |
we are a resident of a qualifying territory; and |
(c) |
we are beneficially entitled to the interest which is payable to us on the Loan for genuine commercial reasons, and not as part of a tax advantage scheme. |
These confirmations together form a creditor certificate.
3. |
In this QPP Certificate the terms “resident”, “qualifying territory”, “scheme”, “tax advantage scheme” and “creditor certificate” have the meaning given to them in the Qualifying Private Placement Regulations 2015 (2015 No. 2002). |
[Name of Lender]
By:
[This QPP Certificate is required where a lender is a person eligible for the UK withholding tax exemption for qualifying private placements; a separate QPP Certificate should be provided by each such lender.]
150
Schedule 2
Conditions Precedent
Part 1
Conditions Precedent to Initial Utilisation
1. |
Corporate Documentation |
(a) |
A copy of the constitutional documents of the Company and each other Original Obligor. |
(b) |
A copy of a resolution of the board of directors of the Company and each other Original Obligor: |
(i) |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party; |
(ii) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and |
(iii) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices (including any Utilisation Request and Selection Notice) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party. |
(c) |
A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above in relation to the Finance Documents to which it is a party. |
(d) |
A certificate of the Company (on behalf of each other Original Obligor in relation to sub-paragraph (i) below) (signed by an authorised signatory) confirming (as at the date of the certificate) that: |
(i) |
borrowing or guaranteeing or securing, as appropriate, the Total Commitments would not cause any borrowing, guarantee, security or similar limit binding on the Company or that other Original Obligor to be exceeded; |
(ii) |
no Default or Event of Default has occurred and is continuing; and |
(iii) |
the Repeating Representations are true in all material respects (except where that representation and warranty is already qualified by materiality under Clause 18 (Representations)). |
(e) |
A Certificate of Good Standing issued by the Registrar of Companies in the Cayman Islands with respect to the Company dated no more than 30 days before the date of this Agreement. |
(f) |
A certificate of the Company and each other Original Obligor (dated no earlier than the date of this Agreement) certifying that each copy document relating to it and specified in this Part 1 of Schedule 2 (Conditions Precedent) is correct, complete and in full force and effect and has not been amended or superseded. |
2. |
Finance Documents |
(a) |
A duly executed copy of this Agreement. |
(b) |
A duly executed copy of each Fee Letter. |
151
(c) |
A duly executed copy of the Subordination Agreement. |
(d) |
A duly executed copy of the Nigeria Guarantee. |
3. |
Legal Opinions |
(a) |
The following legal opinions: |
(i) |
a legal opinion of Clifford Chance LLP, legal advisers to the Arranger and the Facility Agent in England; |
(ii) |
a legal opinion of Walkers (Cayman) LLP, legal advisers to the Company in the Cayman Islands; |
(iii) |
a legal opinion of Clifford Chance LLP, legal advisers to the Arranger and the Facility Agent in the Netherlands; and |
(iv) |
a legal opinion of Aluko & Oyebode, legal advisers to the Arranger and the Facility Agent in Nigeria, |
each substantially in the form distributed to the Original Lenders, and addressed to the Finance Parties at the date of that opinion.
4. |
Other Documents and Evidence |
(a) |
Evidence that the agent for service of process in England and Wales referred to in Clause 43.3 (Service of Process) has accepted its appointment. |
(b) |
Copies of any and all licences required by the Company or any Material Subsidiary to conduct its business. |
(c) |
A certified copy of the Group Structure Chart. |
(d) |
A copy of the Original Financial Statements. |
(e) |
A list of each Existing Material Subsidiary Debt Facility in place as at the date of this Agreement. |
(f) |
Evidence that all fees, costs and expenses then due and payable from the Company under this Agreement have been or will be paid on the earlier of (i) the date falling fifteen Business Days after the date of this Agreement and (ii) the first Utilisation Date. |
152
Part 2
Conditions Precedent Required to be Delivered by an Additional Guarantor
1. |
Corporate Documentation |
(a) |
An Accession Letter, duly executed by the Additional Guarantor and the Company. |
(b) |
A copy of the constitutional documents of the Additional Guarantor. |
(c) |
A copy of a resolution of the board of directors of the Additional Guarantor: |
(i) |
approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter; |
(ii) |
where the Additional Guarantor is incorporated in Nigeria, confirming that guaranteeing the obligations under the Agreement is in the best interest, and for the corporate benefit, of the Additional Guarantor; |
(iii) |
authorising a specified person or persons to execute the Accession Letter on its behalf; and |
(iv) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents. |
(d) |
Where the Additional Guarantor is incorporated in the Netherlands, in each case where applicable and to the extent legally required: |
(i) |
a copy of the resolution of the board of supervisory directors of the Additional Guarantor approving the resolutions of the board of directors; |
(ii) |
a copy of the resolution of the shareholders(s) of the Additional Guarantor approving the resolutions of the board of directors; and |
(iii) |
a copy of (i) the request for advice from each works council, or central or European works council with jurisdiction over the transactions contemplated by the Finance Documents and (ii) a neutral or positive advice from such works council, in respect of the Additional Guarantor. |
(e) |
A specimen of the signature of each person authorised by the resolutions referred to in paragraph (c) above. |
(f) |
To the extent required, a written resolution of all the shareholders of the Additional Guarantor approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents, and in addition, where the Additional Guarantor is incorporated in Nigeria, confirming that guaranteeing the obligations under the Agreement is in the best interest, and for the corporate benefit, of the Additional Guarantor. |
(g) |
A certificate of an authorised signatory of the Additional Guarantor certifying that: |
(i) |
each copy document specified in Part 2 of this Schedule is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Letter; |
(ii) |
guaranteeing the Total Commitments will not cause any guaranteeing or similar limit binding on it to be exceeded; |
153
(iii) |
where the Additional Guarantor is incorporated in Nigeria, guaranteeing the obligations under the Agreement is in the best interest, and in the corporate benefit, of the Additional Guarantor; and |
(iv) |
the Company is authorised to act as its agent in connection with the Finance Documents. |
2. |
Legal Opinions |
The following legal opinions:
(a) |
a legal opinion of the legal advisers to the Arranger and the Facility Agent in England; and |
(b) |
a legal opinion of the legal advisers to the Arranger and the Facility Agent in the jurisdiction of incorporation of the Additional Guarantor, |
each substantially in the form distributed to the Original Lenders before signing the Accession Letter, and addressed to the Finance Parties at the date of that opinion.
3. |
Other Documents and Evidence |
(a) |
In the case of an Additional Guarantor not incorporated in England and Wales, evidence that it has appointed IHS Africa (UK) Limited as its agent for service of process, and that IHS Africa (UK) Limited has accepted its appointment in relation to the Additional Guarantor. |
(b) |
To the extent required, documents required to evidence that any financial assistance “whitewash” or other analogous procedure has been carried out in accordance with applicable law and regulation in the jurisdiction of incorporation of the Additional Guarantor. |
(c) |
Any additional documentation or other evidence necessary to ensure that the obligations of the Additional Guarantor shall be expressed to assume under the Finance Documents shall constitute fully effective and perfected legal, valid, binding and enforceable obligations (which, for the avoidance of doubt, shall not include any requirement for any Accession Letter or this Agreement to be stamped by the relevant tax authorities in Nigeria). |
(d) |
Evidence that all necessary registration and stamping formalities (including, without limitation the payment of any fees or Tax (but which, for the avoidance of doubt, shall not include any requirement for any Accession Letter or this Agreement to be stamped by the relevant tax authorities in Nigeria)) required to be complied with by law or regulation in relation to the Accession Letter have been, or will be, complied with within the applicable time limit for completion of such formalities imposed by the relevant law or regulation. |
154
Schedule 3
Requests and Notice
Part 1
Form of Utilisation Request
To:[●] as Facility Agent
From:IHS Holding Limited
Date:[●]
IHS Holding Limited – USD 270,000,000 Credit Agreement
dated [●] (the “Agreement”)
1. |
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request. |
2. |
We wish to borrow a Loan on the following terms: |
(a) |
Proposed Utilisation Date: [●] (or, if that is not a Business Day, the next Business Day); |
(b) |
Currency of Loan: USD; |
(c) |
Amount: USD[•] or, if less, the Available Facility; and |
(d) |
Interest Period: [●]. |
3. |
We confirm that each condition precedent under the Agreement which is required to be satisfied on the date of this Utilisation Request is satisfied. |
4. |
The proceeds of this Loan should be credited to [account]. |
5. |
This Utilisation Request is irrevocable. |
IHS Holding Limited |
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By: |
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155
Part 2
Selection Notice
To:[●] as Facility Agent
From:IHS Holding Limited
Date:[●]
IHS Holding Limited – USD 270,000,000 Credit Agreement
dated [●] (the “Agreement”)
Dear Sirs
1. |
We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice. |
2. |
We refer to the following Loan[s] with an Interest Period ending on [ ]*. |
3. |
[We request that the next Interest Period for the above Loan[s] is [ ]]. |
4. |
This Selection Notice is irrevocable. |
Yours faithfully
authorised signatory for
IHS Holding Limited
Notes:
* |
Insert details of all Loans for the Facility which have an Interest Period ending on the same date. |
156
Schedule 4
Form of Transfer Certificate
To:[●] as Facility Agent
From: |
[EXISTING LENDER] (the “Existing Lender”) and [NEW LENDER] (the “New Lender”) |
Date: |
[●] |
IHS Holding Limited – USD 270,000,000 Credit Agreement
dated [●] (the “Agreement”)
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
1. |
The Existing Lender transfers by novation to the New Lender the Existing Lender’s rights and obligations referred to in Schedule 1 below in accordance with the terms of the Agreement. |
2. |
The proposed Transfer Date is [●]. |
3. |
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations in respect of this Transfer Certificate contained in the Agreement. |
4. |
The administrative details of the New Lender for the purposes of the Agreement are set out in Schedule 1. |
5. |
The New Lender confirms for the benefit of the Facility Agent and without liability to any Obligor, that it is: |
(a) |
[a Qualifying Lender (other than a Treaty Lender or a QPP Lender);] |
(b) |
[a Treaty Lender;] |
(c) |
[a QPP Lender;] |
(d) |
[not a Qualifying Lender].1 |
6. |
[The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either: |
(a) |
a company resident in the United Kingdom for United Kingdom tax purposes; |
(b) |
a partnership each member of which is: |
(i) |
a company so resident in the United Kingdom; or |
(ii) |
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA;] |
(c) |
[a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or] |
1 |
Delete as applicable. Each New Lender is required to confirm which of these three categories it falls within. |
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(d) |
[a scheme administrator of a registered pension scheme (as those terms are defined in section 989 of the ITA) or any other person or body listed in section 936(2) of the ITA (or a nominee thereof).]2 |
5.[The New Lender provides a QPP Certificate in the form set out in Schedule 2.]3
6. |
[The New Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [ ]) and is tax resident in [ ]4, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax and notifies the Company that it wishes that scheme to apply to the Agreement.]5 |
7. |
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate. |
8. |
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law. |
2 |
Include the relevant sections if New Lender comes within paragraph (4) of the definition of Qualifying Lender in Clause 12.1 (Definitions). |
3 |
Statement to be included and separate QPP Certificate in the form of Schedule 2 to be executed alongside the Transfer Certificate if the New Lender is a person eligible for the UK withholding tax exemption for qualifying private placements. |
4 |
Insert jurisdiction of tax residence. |
5 |
Include if New Lender is not a QPP Lender and holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement. |
158
Schedule 1
Rights and obligations to be transferred by novation
[insert relevant details, including applicable Commitment (or part)]
Administrative details of the New Lender
[insert details of Facility Office, address for notices and payment details etc.]
[Existing Lender] |
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By: |
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[New Lender] |
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By: |
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The Transfer Date is confirmed by the Facility Agent as [●]. |
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[●] |
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By: |
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Note: The execution of this Transfer Certificate may not transfer a proportionate share of the Existing Lender’s interest in the security in all jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Lender’s security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities.
159
Schedule 2
Form of New Lender QPP Certificate
To:IHS Holding Limited as the Company
From: |
[Name of New Lender] |
Dated:
IHS Holding Limited – USD 270,000,000 Credit Agreement
dated [●] (the “Agreement”)
1. |
We refer to the Agreement. This is a QPP Certificate. Terms defined in the Agreement have the same meaning in this QPP Certificate unless given a different meaning in this QPP Certificate. |
2. We confirm that:
(a) |
we are beneficially entitled to all interest payable to us as a Lender under the Loan; |
(b) |
we are a resident of a qualifying territory; and |
(c) |
we are beneficially entitled to the interest which is payable to us on the Loan for genuine commercial reasons, and not as part of a tax advantage scheme. |
These confirmations together form a creditor certificate.
3. |
In this QPP Certificate the terms “resident”, “qualifying territory”, “scheme”, “tax advantage scheme” and “creditor certificate” have the meaning given to them in the Qualifying Private Placement Regulations 2015 (2015 No. 2002). |
[Name of New Lender]
By:
[This QPP Certificate is required where a lender is a person eligible for the UK withholding tax exemption for qualifying private placements; a separate QPP Certificate should be provided by each such lender.]
160
Schedule 5
Form of Assignment Agreement
To:[●] as Facility Agent and the Company
From:[EXISTING LENDER] (the “Existing Lender”) and [NEW LENDER] (the “New Lender”)
Date:[●]
IHS Holding Limited – USD 270,000,000 Credit Agreement
dated [●] (the “Agreement”)
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.
1. |
In accordance with the terms of the Agreement: |
(a) |
the Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender specified in Schedule 1; |
(b) |
to the extent the obligations referred to in paragraph (c) below are effectively assumed by the New Lender, the Existing Lender is released from its obligations under the Agreement specified in Schedule 1; |
(c) |
the New Lender assumes obligations equivalent to those obligations of the Existing Lender under the Agreement specified in Schedule 1; and |
(d) |
the New Lender becomes a Lender under the Agreement and is bound by the terms of the Agreement as a Lender. |
2. |
The proposed Transfer Date is [•]. |
3. |
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations in respect of this Assignment Agreement contained in the Agreement. |
4. |
The New Lender confirms for the benefit of the Facility Agent and without liability to any Obligor, that it is: |
(a) |
[a Qualifying Lender (other than a Treaty Lender or a QPP Lender);] |
(b) |
[a Treaty Lender;] |
(c) |
[a QPP Lender;] |
(d) |
[not a Qualifying Lender].6 |
5. |
[The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either: |
(a) |
a company resident in the United Kingdom for United Kingdom tax purposes; |
(b) |
a partnership each member of which is: |
(i) |
a company so resident in the United Kingdom; or |
6 |
Delete as applicable. Each New Lender is required to confirm which of these three categories it falls within. |
161
(ii) |
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; |
(c) |
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or |
(d) |
a scheme administrator of a registered pension scheme (as those terms are defined in section 989 of the ITA) or any other person or body listed in section 936(2) of the ITA (or a nominee thereof).]7 |
6. |
[The New Lender provides a QPP Certificate in the form set out in Schedule 2].8 |
7. |
[The New Lender confirms that it holds a passport under the HMRC DT Treaty passport scheme (reference number [ ]) and is tax resident in [ ]9, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax, and notifies the Company that it wishes that scheme to apply to the Agreement.]10 |
8. |
The administrative details of the New Lender for the purposes of the Agreement are set out in Schedule 1. |
9. |
This Assignment Agreement acts as notice to the Facility Agent (on behalf of the Company and each Finance Party) of the assignment referred to in this Assignment Agreement. |
10. |
This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of the Assignment Agreement. |
11. |
This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law. |
7 |
Include the relevant sections only if New Lender is a UK Non-Bank Lender - i.e. falls within paragraph (4) of the definition of Qualifying Lender in Clause 12.1 (Definitions). |
8 |
Statement to be included and separate QPP Certificate in the form of Schedule 2 to be executed alongside the Assignment Agreement if the New Lender is a non-UK person eligible for the UK withholding tax exemption for qualifying private placements. |
9 |
Insert jurisdiction of tax residence. |
10 |
Include if New Lender is not a QPP Lender and holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement. |
162
Schedule 1
Rights and obligations to be transferred by assignment, assumption and release
[insert relevant details, including applicable Commitment (or part)]
Administrative details of the New Lender
[insert details of Facility Office, address for notices and payment details etc.]
[Existing Lender]
[Existing Lender] |
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By: |
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[New Lender] |
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By: |
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The Transfer Date is confirmed by the Facility Agent as [●]. |
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[●] |
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By: |
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Note: The execution of this Assignment Agreement may not transfer a proportionate share of the Existing Lender’s interest in the security in all jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Lender’s security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities. An assignment may give rise to stamp duty or transfer tax issues. There will be no liability to stamp duty or SDRT in the UK if the loan capital exemption is available.
163
Schedule 2
Form of New Lender QPP Certificate
To:IHS Holding Limited as the Company
From: |
[Name of New Lender] |
Dated:
IHS Holding Limited – USD 270,000,000 Credit Agreement
dated [●] (the “Agreement”)
1. |
We refer to the Agreement. This is a QPP Certificate. Terms defined in the Agreement have the same meaning in this QPP Certificate unless given a different meaning in this QPP Certificate. |
2. |
We confirm that: |
(a) |
we are beneficially entitled to all interest payable to us as a Lender under the Loan; |
(b) |
we are a resident of a qualifying territory; and |
(c) |
we are beneficially entitled to the interest which is payable to us on the Loan for genuine commercial reasons and not as part of a tax advantage scheme. |
These confirmations together form a creditor certificate.
3. |
In this QPP Certificate the terms "resident", "qualifying territory", "scheme", "tax advantage scheme" and "creditor certificate" have the meaning given to them in the Qualifying Private Placement Regulations 2015 (2015 No. 2002). |
[Name of New Lender]
By:
[This QPP Certificate is required where a lender is a person eligible for the UK withholding tax exemption for qualifying private placements; a separate QPP Certificate should be provided by each such lender.]
164
Schedule 6
Form of Compliance Certificate
To:[●] as Facility Agent
From:IHS Holding Limited
Date:[●]
IHS Holding Limited – USD 270,000,000 Credit Agreement
dated [●] (the “Agreement”)
1. |
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning in this Compliance Certificate unless given a different meaning in this Compliance Certificate. |
2. |
We confirm that: |
(a) |
On the last day of the Relevant Period ending on [•] Net Financial Indebtedness was [●] and EBITDA for such Relevant Period was [●]. Therefore the Leverage Ratio at such time [did/did not] exceed [●] times for such Relevant Period and the covenant contained in paragraph (b) of Clause 20.2 (Financial Condition) [has/has not] been complied with. |
(b) |
On the last day of the Relevant Period ending on [●] EBITDA was [●] and Net Cash Finance Interest Adjusted For Leases for such Relevant Period was [●]. Therefore the Interest Cover Ratio at such time [did/did not] exceed [●] times for such Relevant Period and the covenant contained in paragraph (a) of Clause 20.2 (Financial Condition) [has/has not] been complied with. |
(c) |
[We have received an Additional Investment in an amount of USD[●] which has been applied in accordance with Clause 20.4 (Equity Cure).] |
(d) |
[We confirm no Default or Material Subsidiary Event of Default is continuing.] |
(e) |
[As at the last day of the Relevant Period ending on [●], the following entities are Material Subsidiaries of the Company: |
[●].]
IHS Holding Limited |
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By: [Officer] |
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165
Schedule 7
Form of Increase Confirmation
To: |
[●] as Facility Agent and IHS Holding Limited as the Company |
From: |
[the Increase Lender] (the “Increase Lender”) |
Date:[●]
IHS Holding Limited – USD 270,000,000 Credit Agreement
dated [●] (the “Agreement”)
1. |
We refer to the Agreement. This agreement (the “Increase Agreement”) shall take effect as an Increase Confirmation for the purpose of the Agreement. Terms defined in the Agreement have the same meaning in this Increase Agreement unless given a different meaning in this Increase Agreement. |
2. |
We refer to Clause 2.2 (Increase) of the Agreement. |
3. |
The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Commitment specified in the Schedule (the “Relevant Commitment”) as if it was an Original Lender under the Agreement. |
4. |
The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment is to take effect (the “Increase Date”) is [●]. |
5. |
On the Increase Date, the Increase Lender becomes party to the relevant Finance Documents as a Lender. |
6. |
The Facilities Office and address, email address and attention details for notices to the Increase Lender for the purposes of Clause 34.2 (Addresses), are set out in the Schedule. |
7. |
The Increase Lender expressly acknowledges the limitations on the Lenders’ obligations referred to in paragraph (f) of Clause 2.2 (Increase). |
8. |
The Increase Lender confirms for the benefit of the Facility Agent and without liability to any Obligor, that it is: |
(a) |
[a Qualifying Lender (other than a Treaty Lender or a QPP Lender);] |
(b) |
[a Treaty Lender;] |
(c) |
[a QPP Lender;] |
(d) |
[not a Qualifying Lender.]11 |
9. |
[The Increase Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either: |
(a) |
a company resident in the United Kingdom for United Kingdom tax purposes; |
(b) |
a partnership each member of which is: |
(i) |
a company so resident in the United Kingdom; or |
11 |
Delete as applicable. Each Increase Lender is required to confirm which of these three categories it falls within. |
166
(ii) |
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA;] |
(c) |
[a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or] |
(d) |
[a scheme administrator of a registered pension scheme (as those terms are defined in section 989 of the ITA) or any other person or body listed in section 936(2) of the ITA (or a nominee thereof).]12 |
10. |
[The Increase Lender provides a QPP Certificate in the form set out in Schedule 2.]13 |
11. |
[The Increase Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [ ]) and is tax resident in [ ]14, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax and notifies the Company that it wishes that scheme to apply to the Agreement.]15 |
12. |
This Increase Agreement may be executed in any number of counterparts (each of which shall constitute an original) and this has the same effect as if the signatures on the counterparts were on a single copy of this Increase Agreement. Delivery of a counterpart of this Increase Agreement by email attachment or telecopy shall be an effective mode of delivery. |
13. |
This Increase Agreement and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law. |
14. |
This Increase Agreement has been entered into on the date stated at the beginning of this Increase Agreement. |
12 |
Include the relevant sections if Increase Lender comes within paragraph (4) of the definition of Qualifying Lender in Clause 12.1 (Definitions). |
13 |
Statement to be included and separate QPP Certificate in the form of Schedule 2 to be executed alongside the Increase Confirmation if the Increase Lender is a person eligible for the UK withholding tax exemption for qualifying private placements. |
14 |
Insert jurisdiction of tax residence. |
15 |
Include if Increase Lender is not a QPP Lender and holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement. |
167
Schedule 1
Relevant Commitment/Rights and Obligations
to be Assumed by the Increase Lender
[insert relevant details]
[Facility office address, email address and attention details for
notices and account details for payments]
Increase Lender |
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By: |
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This Increase Agreement is accepted as an Increase Confirmation for the purposes of the Agreement by the Facility Agent and the Increase Date is confirmed as [●]. | |
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Facility Agent |
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By: |
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168
Schedule 2
Form of Increase Lender QPP Certificate
To:IHS Holding Limited as the Company
From: |
[Name of Increase Lender] |
Dated:
IHS Holding Limited – USD 270,000,000 Credit Agreement
dated [●] (the “Agreement”)
1. |
We refer to the Agreement. This is a QPP Certificate. Terms defined in the Agreement have the same meaning in this QPP Certificate unless given a different meaning in this QPP Certificate. |
2. |
We confirm that: |
(a) |
we are beneficially entitled to all interest payable to us as a Lender under the Loan; |
(b) |
we are a resident of a qualifying territory; and |
(c) |
we are beneficially entitled to the interest which is payable to us on the Loan for genuine commercial reasons and not as part of a tax advantage scheme. |
These confirmations together form a creditor certificate.
3. |
In this QPP Certificate the terms "resident", "qualifying territory", "scheme", "tax advantage scheme" and "creditor certificate" have the meaning given to them in the Qualifying Private Placement Regulations 2015 (2015 No. 2002). |
[Name of Increase Lender]
By:
[This QPP Certificate is required where a lender is a person eligible for the UK withholding tax exemption for qualifying private placements; a separate QPP Certificate should be provided by each such lender.]
169
Schedule 8
Form of Accession Letter
To:[●] as Facility Agent
From:IHS Holding Limited as the Company and [PROPOSED GUARANTOR]
Date:[●]
IHS Holding Limited – USD 270,000,000 Credit Agreement
dated [●] (the “Agreement”)
1. |
We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter. |
2. |
[Name of company] agrees to become an Additional Guarantor and to be bound by the terms of the [Agreement]16/[Nigeria Guarantee]17 as an Additional Guarantor. [Name of company] is a company duly incorporated under the laws of [name of relevant jurisdiction]. |
3. |
[Name of company]’s administrative details are as follows: [●]. |
4. |
This Accession Letter is intended to take effect as a deed. |
5. |
This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law. |
IHS Holding Limited |
|
|
|
|
|
Director |
|
16 |
To be included in respect of any Additional Guarantor that is not incorporated in Nigeria. |
17 |
To be included in respect of any Additional Guarantor that is incorporated in Nigeria. |
170
Schedule 9
Form of Resignation Letter
To:[●] as Facility Agent
From:IHS Holding Limited as the Company and [EXITING GUARANTOR]
Date:[●]
IHS Holding Limited – USD 270,000,000 Credit Agreement
dated [●] (the “Agreement”)
1. |
We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have the same meaning in this Resignation Letter unless given a different meaning in this Resignation Letter. |
2. |
We request that [Exiting Guarantor] be released from its obligations as a Guarantor under the Finance Documents (including the [Agreement] 18/[Nigeria Guarantee] 19). |
3. |
We confirm that: |
(a) |
no Default is continuing or would result from the acceptance of this request; |
(b) |
as at the date of this Resignation Letter [no amount owing by [Exiting Guarantor] under any Finance Document as a Guarantor is outstanding]; and |
(c) |
[●]. |
4. |
This Resignation Letter and any non-contractual obligations arising out of or in connection with it are governed by English law. |
IHS Holding Limited |
|
|
|
|
|
By: |
|
|
|
[Exiting Guarantor] |
|
|
|
|
|
By: |
|
The Facility Agent confirms that this resignation takes effect on [●].
18 |
To be included in respect of any Additional Guarantor that is not incorporated in Nigeria. |
19 |
To be included in respect of any Additional Guarantor that is incorporated in Nigeria. |
171
[●] |
|
as Facility Agent |
|
|
|
|
|
By: |
|
172
Schedule 10
Forms of Notifiable Debt Purchase Transaction Notice
Part 1
Form of Notice on Entering into Notifiable Debt Purchase Transaction
To:[●] as Facility Agent
From:[LENDER]
Date:[●]
IHS Holding Limited – USD 270,000,000 Credit Agreement
dated [●] (the “Agreement”)
1. |
We refer to paragraph (b) of Clause 26.2 (Disenfranchisement on Debt Purchase Transactions Entered into by Affiliates) of the Agreement. Terms defined in the Agreement have the same meaning in this notice unless given a different meaning in this notice. |
2. |
We have entered into a Notifiable Debt Purchase Transaction. |
3. |
The Notifiable Debt Purchase Transaction referred to in paragraph 2 above relates to the amount of our Commitment as set out below. |
Commitment |
Amount of our Commitment to which Notifiable Debt Purchase Transaction relates |
[Commitment] |
[insert amount (of that Commitment) to which the relevant Debt Purchase Transaction applies] |
[Lender] |
|
|
|
|
|
By: |
|
173
Part 2
Form of Notice on Termination of Notifiable Debt Purchase Transaction/Notifiable Debt Purchase Transaction Ceasing to be with Sponsor Affiliate
To:[●] as Facility Agent
From:[LENDER]
Date:[●]
IHS Holding Limited – USD 270,000,000 Credit Agreement
dated [●] (the “Agreement”)
1. |
We refer to paragraph (c) of Clause 26.2 (Disenfranchisement on Debt Purchase Transactions Entered into by Affiliates) of the Agreement. Terms defined in the Agreement have the same meaning in this notice unless given a different meaning in this notice. |
2. |
A Notifiable Debt Purchase Transaction which we entered into and which we notified you of in a notice dated [●] has [terminated]/[ceased to be with a Sponsor Affiliate]. |
3. |
The Notifiable Debt Purchase Transaction referred to in paragraph 2 above relates to the amount of our Commitment as set out below. |
Commitment |
Amount of our Commitment to which Notifiable Debt Purchase Transaction relates |
[Commitment] |
[insert amount (of that Commitment) to which the relevant Debt Purchase Transaction applies] |
[Lender] |
|
|
|
|
|
By: |
|
174
Schedule 11
Existing Security
Member of the Group |
|
Details of Security |
Centennial Towers Brasil Cooperatief U.A. and IHS Netherlands BR B.V. |
|
1. Contrato de Alienação Fiduciária de Ações Em Garantia e Outras Avenças Sob Condição Suspensiva dated 25 August 2023, as amended, entered into by Centennial Towers Brasil Cooperatief U.A. and IHS Netherlands BR B.V. as pledgors, and Oliveira Trust Distribuidora de Títulos e Valores Mobiliários S.A. as trustee and representative of the debentures holders, and IHS Brasil – Cessão de Infraestruturas S.A. as intervening party |
IHS Brasil – Cessão de Infraestruturas S.A. |
|
1. Instrumento Particular de Cessão Fiduciária de Direitos Creditórios em Garantia e Outras Avenças Sob Condição Suspensiva dated 25 August 2023, as amended, of the entire credit rights over the bank accounts of IHS Brasil – Cessão de Infraestruturas S.A. entered into with Oliveira Trust Distribuidora de Títulos e Valores Mobiliários S.A. |
IHS Côte d’Ivoire S.A. |
|
1. Contrat de Nantissement de Comptes Bancaires dated 15 February 2024 entered into between IHS Cote d’Ivoire SA and EBI SA 2. Contrat de Nantissement de Créances dated 15 February 2024 entered into between IHS Cote d’Ivoire SA and EBI SA 3. Contrat de Gage de Biens Meubles sans Dépossession dated 15 February 2024 entered into between IHS Cote d’Ivoire SA and EBI SA 4. Security Agreement (regarding the Initial Shares and Related Assets of IHS Mauritius Cote d’Ivoire Limited) dated 9 February 2024 entered into between EBI SA, IHS Holding Limited and IHS Mauritius Cote d’Ivoire Limited 5. Contrat de Nantissement d’Actions de la Société IHS Cote d’Ivoire SA étendu aux fruits et produits dated 15 February 2024 entered into between IHS Mauritius Cote d’Ivoire Limited and EBI SA 6. Contrat de Nantissement de Créances (Prêts d’Actionnaire) dated 15 February 2024 entered into between IHS Mauritius Cote d’Ivoire Limited and EBI SA 7. Acte de promesse de vente d’actions de la société IHS Cote d’Ivoire SA dated 15 February 2024 entered into between Mr. Sam Darwish, Mr. William Saad, EBI SA and in the presence of IHS Mauritius Cote d’Ivoire Limited 8. Déclaration de Nantissement de Compte de Titres Financiers dated 15 February 2024 entered into between IHS Mauritius Cote d’Ivoire Limited and IHS Cote d’Ivoire |
175
IHS Kuwait Limited |
|
1. Business Pledge Agreement dated 7 July 2020 between, amongst others, IHS Kuwait Limited and Ahli Bank of Kuwait K.S.C.P as security agent 2. English law security assignment agreement dated 6 July 2020 between IHS Kuwait Limited and Al Ahli Bank of Kuwait K.S.C.P as security agent 3. Deed of subordination and assignment agreement dated 27 April 2020 between, amongst others, IHS Kuwait Limited as Debtor and Al Ahli Bank of Kuwait K.S.C.P as security agent |
IHS Towers South Africa Proprietary Limited |
|
1. Special Notarial Bond dated 26 May 2022 entered into by IHS Towers South Africa Proprietary Limited in favour of Bowwood and Main No 339 Proprietary Limited 2. General Notarial Bond dated 26 May 2022 entered into by IHS Towers South Africa Proprietary Limited in favour of Bowwood and Main No 339 Proprietary Limited 3. Share Pledge in relation to shares in IHS Towers South Africa Proprietary Limited dated 26 May 2022 entered into between IHS South Africa Holding Proprietary Limited, FirstRand Bank Limited (acting through its Rand Merchant Banking Division) and Bowwood and Main No 339 Proprietary Limited 4. Cession Agreement dated 26 May 2022 entered into between IHS Towers South Africa Proprietary Limited, FirstRand Bank Limited (acting through its Rand Merchant Banking Division) and Bowwood and Main No 339 Proprietary Limited 5. Subordination Agreement dated 26 May 2022 entered into between IHS South Africa Holding Proprietary Limited, IHS Towers South Africa Proprietary Limited, FirstRand Bank Limited (acting through its Rand Merchant Banking Division) and Bowwood and Main No 339 Proprietary Limited |
IHS Zambia Limited |
|
1. Fixed and floating charge dated 13 February 2021 entered into between IHS Zambia Limited, as Chargor and Standard Chartered Bank, as Collateral Agent; 2. Security Assignment Agreement of IHS Zambia Limited’s rights in respect of assigned agreements dated 13 February 2021 entered into between IHS Zambia Limited, as Assignor and Standard Chartered Bank, as Collateral Agent; 3. Charge over all onshore accounts of IHS Zambia Limited dated 13 February 2021 entered into between IHS Zambia Limited, as Chargor and Standard Chartered Bank, as Collateral Agent; 4. Share Pledge Agreement in relation to IHS Holding Limited’s shares in IHS Mauritius Zambia Limited dated 13 February 2021 entered into between IHS Holding Limited, IHS |
176
|
|
Mauritius Zambia Limited and Standard Chartered Bank, as Collateral Agent; 5. Share Pledge Agreement in relation to IHS Mauritius Zambia Limited’s shares in IHS Zambia Limited dated 13 February 2021 entered into between IHS Mauritius Zambia Limited, IHS Zambia Limited and Standard Chartered Bank, as Collateral Agent; 6. Charge over all offshore accounts of IHS Zambia Limited dated 13 February 2021 entered into between IHS Zambia Limited, as Chargor and Standard Chartered Bank, as Collateral Agent; and 7. Subordination Agreement and Assignment of Contractual Rights under Shareholder Loans dated 13 February 2021 entered into between International Finance Corporation, Standard Chartered Bank as Facility Agent and Collateral Agent, IHS Holding Limited as Guarantor, IHS Finco Management Limited, IHS Mauritius Zambia Limited, and IHS Zambia Limited as Borrower. |
I-Systems Solucoes de Infraestrutura S.A |
|
1. Instrumento Particular de Cessão Fiduciária de Direitos Creditórios em Garantia e Outras Avenças dated 3 October 2022 (as amended on 31 January 2023 and on 28 March 2023) entered into between Itaú Unibanco S.A. and I-Systems Solucoes de Infraestrutura S.A. |
177
Schedule 12
Existing Guarantees
Party Guaranteed |
|
Details of Guarantee |
IHS Zambia Limited |
|
Deed of guarantee dated 13 February 2021 relating to an up to USD 95,000,000 facility agreement dated 13 February 2021 as amended and restated on 23 January 2023 for IHS Zambia Limited as borrower entered into between IHS Holding Limited as guarantor, International Finance Corporation and Standard Chartered Bank. |
IHS (Nigeria) Limited and INT Towers Limited |
|
Guarantee dated 12 October 2022 between IHS Holding Limited as guarantor and BP Oil International Limited as beneficiary in relation to certain crude oil and/or petroleum product transactions entered into by IHS (Nigeria) Limited and INT Towers Limited. |
IHS Holding Limited, IHS Netherlands Holdco B.V., IHS Netherlands NG1 B.V., IHS Netherlands NG2 B.V. and Nigeria Tower Interco B.V., IHS (Nigeria) Limited, INT Towers Limited and IHS Towers NG Limited |
|
Guarantee provided under the unsecured USD term credit facility agreement dated on 28 October 2022 between, among others, IHS Holding Limited as borrower, Citibank Europe plc, UK Branch as facility agent and the original lenders named therein. |
IHS Holding Limited, IHS Netherlands Holdco B.V., IHS Netherlands NG1 B.V., IHS Netherlands NG2 B.V. and Nigeria Tower Interco B.V., IHS (Nigeria) Limited, INT Towers Limited and IHS Towers NG Limited |
|
Guarantee provided under the unsecured NGN term facility agreement dated on 3 January 2023 between, among others, IHS Netherlands Holdco B.V., each of IHS (Nigeria) Limited, INT Towers Limited and ITNG as borrowers, Ecobank Nigeria Limited as agent and the original lenders named therein. |
IHS Holding Limited, IHS Netherlands Holdco B.V., IHS Netherlands NG1 B.V., IHS Netherlands NG2 B.V. and Nigeria Tower Interco B.V., IHS (Nigeria) Limited, INT Towers Limited and IHS Towers NG Limited |
|
Guarantee provided under the unsecured NGN revolving credit facility agreement dated on 3 January 2023 between, among others, IHS Netherlands Holdco B.V., each of IHS (Nigeria) Limited, INT Towers Limited and ITNG as borrowers, Ecobank Nigeria Limited as agent and the original lenders named therein. |
IHS Holding Limited, IHS Netherlands Holdco B.V., IHS Netherlands NG1 B.V., IHS Netherlands NG2 B.V. and Nigeria Tower Interco B.V., IHS (Nigeria) Limited, INT |
|
Guarantee provided under the unsecured USD revolving credit facility agreement originally dated on 30 March 2020 and as amended from time to time including on 6 November 2023, between, among others, IHS Holding Limited as borrower, Citibank Europe plc, UK Branch as facility agent and the original lenders named therein. |
178
Towers Limited and IHS Towers NG Limited |
|
|
INT Towers Limited |
|
Guarantee dated 21 February 2024 between IHS Holding Limited as guarantor and United Bank for Africa Plc as beneficiary in relation to certain crude oil and/or petroleum product transactions entered into by INT Towers Limited. |
179
Schedule 13
Timetables
|
|
Loans |
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)) or a Selection Notice (Clause 9.1 (Selection of Interest Periods)). |
|
10:00 a.m. three Business Days before the Utilisation Day. |
Facility Agent notifies the Lenders of the Loan (Clause 5.4 (Lenders’ Participation)). |
|
Promptly upon receipt of the Utilisation Request. |
Reference Rate is fixed |
|
Quotation Day as of 11am |
180
Schedule 14
Existing Material Subsidiary Debt Facilities
1. |
Facility agreement dated 26 May 2022 for facilities of South African Rand 3,470,000,000 between IHS Towers South Africa Proprietary Limited, as borrower, ABSA Bank Limited (acting through its Corporate and Investment Banking Division), FirstRand Bank Limited (acting through its Rand Merchant Banking division), Investec Bank Limited (acting through its Corporate and Institutional Banking division), Standard Chartered Bank and Access Bank (South Africa) Limited, as mandated lead arrangers, and FirstRand Bank Limited (acting through its Rand Merchant Banking division) as agent. |
2. |
Facility agreement dated 3 October 2022 for facilities of Brazilian Real 200,000,000 for I-Systems Soluções de Infraestrutura S.A. as borrower and Itau Unibanco S.A. as lender. |
3. |
Term facility agreement dated 28 October 2022 between, amongst others, IHS Holding Limited as borrower, Absa Bank Limited (acting through its Corporate and Investment Banking division), Citibank N.A., London Branch, FirstRand Bank Limited (London Branch), acting through its Rand Merchant Bank division and Standard Chartered Bank as mandated lead arrangers and Citibank Europe plc, UK Branch as facility agent. |
4. |
Term facility agreement dated 3 January 2023 between IHS Netherlands Holdco B.V. as holdco, IHS (Nigeria) Limited, IHS Towers NG Limited and INT Towers Limited as borrowers, Rand Merchant Bank Nigeria Limited as coordinator and Access Bank Plc, Ecobank Nigeria Limited, Rand Merchant Bank Nigeria Limited and United Bank for Africa Plc as mandated lead arrangers and Ecobank Nigeria Limited as agent. |
5. |
Revolving credit facility agreement dated 3 January 2023 between IHS Netherlands Holdco B.V. as holdco, IHS (Nigeria) Limited, IHS Towers NG Limited and INT Towers Limited as borrowers, Rand Merchant Bank Nigeria Limited as coordinator and Access Bank Plc, Ecobank Nigeria Limited, Rand Merchant Bank Nigeria Limited and United Bank for Africa Plc as mandated lead arrangers and Ecobank Nigeria Limited as agent. |
6. |
Facility agreement dated 31 January 2023 for facilities of Brazilian Real 80,000,000 for I-Systems Soluções de Infraestrutura S.A. as borrower and Itau Unibanco S.A. as lender. |
7. |
Facility agreement dated 28 March 2023 for facilities of Brazilian Real 120,000,000 for I-Systems Soluções de Infraestrutura S.A. as borrower and Itau Unibanco S.A. as lender. |
8. |
Debentures deed dated 25 August 2023 for facilities of Brazilian Real 1,200,000,000 for IHS Brasil – Cessão de Infraestruturas S.A. as issuer and guarantor and Banco Itaú BBA S.A., UBS Brasil Corretora de Câmbio, Títulos e Valores Mobiliários S.A, Banco Santander (Brasil) S.A and Banco Bradesco BBI S.A as Coordinators. |
9. |
Facility agreement dated 26 October 2023 for overdraft facilities of South African Rand 350,000,000 between IHS Towers South Africa Proprietary Limited as borrower and ABSA Bank Limited as lender. |
10. |
Revolving credit facility agreement originally dated 30 March 2020 between, amongst others, the Company and Citibank Europe PLC, UK Branch as facility agent, as amended and restated pursuant to an amendment and restatement agreement dated 2 June 2021, as amended on 29 September 2021 and as further amended and restated on 6 November 2023 and as may be further amended and / or restated from time to time. |
11. |
Facility agreement dated 29 December 2023 for facilities of EUR 88,000,000 and CFA Francs 11,151,269,000 for IHS Cote d’Ivoire S.A. as borrower, arranged by Citibank, N.A., London Branch, with EBI S.A. acting as facility agent and security agent. |
181
Schedule 15
Acceptable Banks
Banco do Brasil S.A. |
|
Brazil |
Banco BOCOM BBM S.A. |
|
Brazil |
Banco Bradesco S.A. |
|
Brazil |
Caixa Economical Federal |
|
Brazil |
Citibank Brazil |
|
Brazil |
Itau Unibanco S.A. |
|
Brazil |
Banco Safra S.A. |
|
Brazil |
Banco Santander S.A. |
|
Brazil |
JP Morgan |
|
Brazil |
BTG Pactual |
|
Brazil |
Goldman Sachs |
|
Brazil |
Access Bank Cameroon |
|
Cameroon |
Citibank Cameroon |
|
Cameroon |
Ecobank Cameroon |
|
Cameroon |
Societe Generale Cameroon |
|
Cameroon |
Standard Chartered Bank Cameroon |
|
Cameroon |
UBA Cameroon |
|
Cameroon |
Citibank Cote D’Ivoire |
|
CIV |
Ecobank Cote D’Ivoire |
|
CIV |
Stanbic Cote D’Ivoire |
|
CIV |
Standard Chartered Bank CIV |
|
CIV |
Societe Generale Cote D’Ivoire |
|
CIV |
UBA Cote D’Ivoire |
|
CIV |
Citibank |
|
Colombia |
Colpatria |
|
Colombia |
Grupo Bancolumbia |
|
Colombia |
Santander |
|
Colombia |
Citibank Egypt |
|
Egypt |
Awash International bank |
|
Ethiopia |
EBI SA |
|
France |
Al Ahli Bank of Kuwait K.S.C.P. |
|
Kuwait |
Mashreq Bank |
|
Kuwait |
Afrasia Bank Limited |
|
Mauritius |
Standard Bank Mauritius |
|
Mauritius |
182
ABSA Bank Mauritius Limited |
|
Mauritius |
RMB International (Mauritius) Ltd |
|
Mauritius |
The Mauritius Commercial Bank Limited |
|
Mauritius |
Investec Bank |
|
Mauritius |
Citibank Europe plc - Netherlands |
|
Netherlands |
Access Bank plc |
|
Nigeria |
Citibank Nigeria |
|
Nigeria |
Ecobank Nigeria |
|
Nigeria |
Rand Merchant Bank Nigeria Limited |
|
Nigeria |
Stanbic Nigeria |
|
Nigeria |
Standard Chartered Bank Nigeria |
|
Nigeria |
UBA Nigeria |
|
Nigeria |
Zenith Bank plc |
|
Nigeria |
First City Monument Bank |
|
Nigeria |
Banco de Credito del Peru |
|
Peru |
Banco de la Nación |
|
Peru |
Citibank |
|
Peru |
Santander |
|
Peru |
Ecobank Rwanda |
|
Rwanda |
Access Bank |
|
Rwanda |
Bank of Kigali |
|
Rwanda |
Banke Saudi Fransi |
|
Saudi Arabia |
Access Bank |
|
South Africa |
FirstRand Bank Limited (acting through its Rand Merchant Bank division) |
|
South Africa |
ABSA Bank |
|
South Africa |
Standard Chartered Bank |
|
South Africa |
Investec Bank |
|
South Africa |
Citibank |
|
South Africa |
Standard Chartered Bank - Dubai, UAE |
|
UAE |
Mashreq Bank |
|
UAE |
Citibank |
|
UAE |
Citibank UK |
|
United Kingdom |
Standard Chartered Bank UK |
|
United Kingdom |
Access Bank |
|
United Kingdom |
UBA Bank |
|
United Kingdom |
Citibank, N.A., London Branch |
|
United Kingdom |
183
J.P. Morgan |
|
United Kingdom |
Goldman Sachs |
|
United Kingdom |
MUFG Bank |
|
United Kingdom |
Standard Advisory London (Standard Bank) |
|
United Kingdom |
Itau BBA International Plc |
|
United Kingdom |
FirstRand Bank Limited (London Branch), acting through its Rand Merchant Bank division |
|
United Kingdom |
Citibank |
|
United States of America |
J.P. Morgan |
|
United States of America |
Goldman Sachs |
|
United States of America |
Citibank Zambia |
|
Zambia |
Standard Chartered Bank Zambia |
|
Zambia |
Ecobank |
|
Zambia |
Access Bank |
|
Zambia |
184
Signature Pages to the Credit Facility
The Company
IHS Holding Limited
Signed |
|
|
|
|
|
/s/ Steve Howden |
|
|
Name: Steve Howden |
|
|
Title: Authorised Signatory |
|
|
For and on behalf of |
|
|
IHS Holding Limited |
|
|
(Signature page to Project Rapid – Term Facility Agreement)
Original Facility Guarantors
Holdco
IHS Netherlands Holdco B.V.
Signed |
|
|
|
|
|
/s/ Mohamad Darwish |
|
|
Name: Mohamad Darwish |
|
|
Title: Authorised Signatory |
|
|
/s/ Gerard Jan van Spall |
|
|
Name: Gerard Jan van Spall |
|
|
Title: Authorised Signatory |
|
|
for and on behalf of |
|
IHS NETHERLANDS HOLDCO B.V. |
|
(Signature page to Project Rapid – Term Facility Agreement)
Nigeria Tower Interco B.V.
Signed |
|
|
|
|
|
/s/ William Saad |
|
|
Name: William Saad |
|
|
Title: Authorised Signatory |
|
|
/s/ Gerard Jan van Spall |
|
|
Name: Gerard Jan van Spall |
|
|
Title: Authorised Signatory |
|
|
for and on behalf of |
|
NIGERIA TOWER INTERCO B.V. |
|
(Signature page to Project Rapid – Term Facility Agreement)
IHS Netherlands NG1 B.V.
Signed |
|
|
|
|
|
/s/ Mohamad Darwish |
|
|
Name: Mohamad Darwish |
|
|
Title: Authorised Signatory |
|
|
/s/ Gerard Jan van Spall |
|
|
Name: Gerard Jan van Spall |
|
|
Title: Authorised Signatory |
|
|
for and on behalf of |
|
IHS NETHERLANDS NG1 B.V. |
|
(Signature page to Project Rapid – Term Facility Agreement)
IHS Netherlands NG2 B.V.
Signed |
|
|
|
|
|
/s/ Mohamad Darwish |
|
|
Name: Mohamad Darwish |
|
|
Title: Authorised Signatory |
|
|
/s/ Gerard Jan van Spall |
|
|
Name: Gerard Jan van Spall |
|
|
Title: Authorised Signatory |
|
|
for and on behalf of |
|
IHS NETHERLANDS NG2 B.V. |
|
(Signature page to Project Rapid – Term Facility Agreement)
The Arranger
Standard Chartered Bank
Signed |
|
|
|
|
|
/s/ Tony Pinches |
|
|
By: Tony Pinches |
|
|
Address: 1 Basinghall Avenue, London, EC2V 5DD |
|
|
Email: tony.pinches@sc .com |
|
|
Attention: Tony Pinches |
|
|
(Signature page to Project Rapid – Term Facility Agreement)
The Facility Agent
Standard Chartered Bank
Signed |
|
|
|
|
|
/s/ Tony Pinches |
|
|
By: Tony Pinches |
|
|
Address: 1 Basinghall Avenue, London, EC2V 5DD |
|
|
Email: tony.pinches@sc .com |
|
|
Attention: Tony Pinches |
|
|
(Signature page to Project Rapid – Term Facility Agreement)
The Original Lenders
Signed |
|
|
|
|
|
/s/ Freddy Ong Teck Guan |
|
|
Name: Freddy Ong Teck Guan |
|
|
Title: Authorised Signatory |
|
|
For and on behalf of |
|
|
Standard Chartered Bank (Singapore) Limited |
|
|
(Signature page to Project Rapid – Term Facility Agreement)
Exhibit 8.1
Entity name |
Country of incorporation |
IHS Holding Limited (ultimate parent) |
Cayman Islands |
IHS Mauritius Cameroon Limited |
Mauritius |
IHS Mauritius Côte d’Ivoire Limited |
Mauritius |
IHS Mauritius Netherlands Limited |
Mauritius |
IHS Mauritius Zambia Limited |
Mauritius |
IHS Mauritius Rwanda Limited |
Mauritius |
IHS Africa (UK) Limited |
United Kingdom |
IHS Netherlands (Interco) Coöperatief U.A. |
Netherlands |
IHS Netherlands Holdco B.V. |
Netherlands |
IHS Netherlands NG1 B.V. |
Netherlands |
IHS Netherlands NG2 B.V. |
Netherlands |
IHS Nigeria Limited |
Nigeria |
INT Towers Limited |
Nigeria |
IHS Towers NG Limited |
Nigeria |
IHS Côte d’Ivoire S.A. |
Côte d’Ivoire |
IHS Cameroon S.A. |
Cameroon |
IHS Zambia Limited |
Zambia |
IHS Rwanda Limited |
Rwanda |
Rwanda Towers Limited |
Rwanda |
IHS Kuwait Limited |
Kuwait |
IHS Brasil - Cessão de Infraestruturas S.A. |
Brazil |
IHS Towers Colombia S.A.S |
Colombia |
IHS Peru S.A.C. |
Peru |
San Gimignano Imoveis e Adminsitracao Ltda. |
Brazil |
Nigeria Tower Interco B.V. |
Netherlands |
IHS Netherlands GCC B.V. |
Netherlands |
IHS Netherlands KSA B.V. |
Netherlands |
IHS GCC Limited |
United Arab Emirates |
IHS Netherlands Connect B.V. |
Netherlands |
IHS GCC KW Holding Limited |
United Arab Emirates |
IHS FinCo Management Limited |
United Arab Emirates |
IHS GCC MAR Holding Limited |
United Arab Emirates |
Global Independent Connect Limited |
Nigeria |
IHS KSA Limited |
Kingdom of Saudi Arabia |
IHS SSC FZE |
United Arab Emirates |
IHS Netherlands RSA B.V |
Netherlands |
IHS Netherlands BR B.V |
Netherlands |
IHS South Africa Holding Proprietary Limited |
South Africa |
IHS Towers South Africa Proprietary Limited |
South Africa |
IHS Netherlands PHP B.V |
Netherlands |
IHS Towers Inc. |
United States of America |
IHS Netherlands EGY B.V. |
Netherlands |
IHS Telecom Towers Egypt S.A.E. |
Egypt |
Skysites Americas Ltda |
Brazil |
Wi-Fi Mundial Ltda. |
Brazil |
IHS Fiber Brasil Participações Ltda. |
Brazil |
IHS Fiber Brasil - Cessão de Infraestruturas Ltda. |
Brazil |
I-Systems Soluções de Infraestrutura S.A. |
Brazil |
Centennial Towers Colombia S.A.S. |
Colombia |
Polar Breeze Colombia S.A.S |
Colombia |
Centennial Towers Brasil Cooperatief U.A. |
Netherlands |
Centennial Towers of Brasil B.V. |
Netherlands |
Centennial Towers of Colombia Ltd. |
British Virgin Islands |
IHS CNT Brasil Torres de Telecomunicacoes Ltda. |
Brazil |
Polar Breeze Empreendimentos Ltda. |
Brazil |
IHS E-Services (NG) Limited |
Nigeria |
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Exhibit 12.1 |
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IHS Holding Limited 1 Cathedral Piazza 123 Victoria Street London, SW1E 5BP United Kingdom www.ihstowers.com |
CERTIFICATION OF THE CHIEF FINANCIAL OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Steve Howden, Chief Financial Officer, certify that:
1. |
I have reviewed this annual report on Form 20-F of IHS Holding Limited (the “Company”); |
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report; |
4. |
The Company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Company and have: |
(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
(b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
(c) |
Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
(d) |
Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; and |
5. |
The Company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Company’s board of directors (or persons performing the equivalent functions): |
(a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and |
(b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. |
Date: March 12, 2024 |
By: |
/s/ Steve Howden |
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Name: Steve Howden |
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Title: Chief Financial Officer |
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Exhibit 12.2 |
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IHS Holding Limited 1 Cathedral Piazza 123 Victoria Street London, SW1E 5BP United Kingdom www.ihstowers.com |
CERTIFICATION OF THE CHIEF FINANCIAL OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Steve Howden, Chief Financial Officer, certify that:
1. |
I have reviewed this annual report on Form 20-F of IHS Holding Limited (the “Company”); |
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report; |
4. |
The Company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Company and have: |
(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
(b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
(c) |
Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
(d) |
Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; and |
5. |
The Company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Company’s board of directors (or persons performing the equivalent functions): |
(a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and |
(b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. |
Date: March 12, 2024 |
By: |
/s/ Steve Howden |
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Name: Steve Howden |
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Title: Chief Financial Officer |
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Exhibit 13.1 |
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IHS Holding Limited 1 Cathedral Piazza 123 Victoria Street London, SW1E 5BP United Kingdom www.ihstowers.com |
CERTIFICATION OF THE CHIEF EXECUTIVE OFFICER PURSUANT TO SECTION 906 OF
THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report on Form 20-F of IHS Holding Limited (the “Company”) for the year ended December 31, 2023, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Sam Darwish, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: March 12, 2024 |
By: |
/s/ Sam Darwish |
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Name: Sam Darwish |
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Title: Chief Executive Officer |
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Exhibit 13.2 |
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IHS Holding Limited 1 Cathedral Piazza 123 Victoria Street London, SW1E 5BP United Kingdom www.ihstowers.com |
CERTIFICATION OF THE CHIEF FINANCIAL OFFICER PURSUANT TO SECTION 906 OF
THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report on Form 20-F of IHS Holding Limited (the “Company”) for the year ended December 31, 2023, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Steve Howden, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: March 12, 2024 |
By: |
/s/ Steve Howden |
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Name: Steve Howden |
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Title: Chief Financial Officer |
Exhibit 15.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 (No. 333-260317) of IHS Holding Limited of our report dated March 12, 2024 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in this Form 20-F.
/s/ PricewaterhouseCoopers LLP
London, United Kingdom
March 12, 2024
Exhibit 97.1
IHS GROUP POLICY FOR
RECOVERY OF
ERRONEOUSLY AWARDED
COMPENSATION
(CLAWBACK POLICY)
VER.1 – NOVEMBER 2023
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1 |
Listing rules and standards in the United States of America (US) require issuers to develop and implement a policy providing for the recovery, in the event of a required accounting restatement, of incentive-based compensation received by current or former executive officers where that compensation is based on the erroneously reported financial information. Furthermore, the same rules require issuer to file the policy as an exhibit to its annual report and to include other disclosures in the event a recovery analysis is triggered under the policy.
IHS Holding Limited (the “Company”) has adopted this Policy for Recovery of Erroneously Awarded Compensation (the “Policy”, also known as the Clawback Policy), effective as of November 8, 2023 (the “Effective Date”).
2 |
This Policy is developed to ensure the Company operates in accordance with the listing rules and standards applicable in the US.
3 |
This Policy shall apply to current and former Officers (as the term is defined in this Policy) of the Company.
4 |
S/N |
Terminology or Acronym |
Meaning |
1. |
Applicable Rules |
Means Section 10D of the Exchange Act, Rule 10D-1 promulgated thereunder, the listing rules of the national securities exchange or association on which the Company’s securities are listed, and any applicable rules, standards or other guidance adopted by the Securities and Exchange Commission or any national securities exchange or association on which the Company’s securities are listed. |
2. |
Committee |
Means the committee of the Board responsible for executive compensation decisions (currently being the Remuneration Committee), or in the absence of such a committee, a majority of the independent directors serving on the Board. |
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S/N |
Terminology or Acronym |
Meaning |
|---|---|---|
3. |
Erroneously Awarded Compensation |
Means the amount of Incentive-Based Compensation received by a current or former Officer that exceeds the amount of Incentive-Based Compensation that would have been received by such current or former Officer based on a restated Financial Reporting Measure, as determined on a pre-tax basis in accordance with the Applicable Rules. |
4. |
Exchange Act |
Means the Securities Exchange Act of 1934, as amended. |
5. |
Financial Reporting Measure |
Means any measure determined and presented in accordance with the accounting principles used in preparing the Company’s financial statements, and any measures derived wholly or in part from such measures, including GAAP, IFRS and non-GAAP/IFRS financial measures, as well as stock or share price and total equityholder return. |
6. |
GAAP |
Means United States generally accepted accounting principles. |
7. |
IFRS |
Means International Financial Reporting Standards as adopted by the International Accounting Standards Board. |
8. |
Impracticable |
Means (a) the direct costs paid to third parties to assist in enforcing recovery would exceed the Erroneously Awarded Compensation; provided that the Company (i) has made reasonable attempts to recover the Erroneously Awarded Compensation, (ii) documented such attempt(s), and (iii) provided such documentation to the relevant listing exchange or association, (b) to the extent permitted by the Applicable Rules, the recovery would violate the Company’s home country laws pursuant to an opinion of home country counsel; provided that the Company has (i) obtained an opinion of home country counsel, acceptable to the relevant listing exchange or association, that recovery would result in such violation, and (ii) provided such opinion to the relevant listing exchange or association, or (c) recovery would likely cause an otherwise tax-qualified retirement plan, under which benefits are broadly available to employees of the Company, to fail to meet the requirements of 26 U.S.C. 401(a)(13) or 26 U.S.C. 411(a) and the regulations thereunder. |
9. |
Incentive-Based Compensation |
Means, with respect to a Restatement, any compensation that is granted, earned, or vested based wholly or in part upon the attainment of one or more Financial Reporting Measures and received by a person: (a) after beginning service as an Officer; (b) who served as an Officer at any time during the performance period for that compensation; (c) while the issuer has a class of its securities listed on a national securities exchange or association; and (d) during the applicable Three-Year Period. |
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S/N |
Terminology or Acronym |
Meaning |
|---|---|---|
10. |
Officer |
Means each person who serves as an executive officer of the Company, in accordance with Rule 10D-1(d) under the Exchange Act. |
11. |
Restatement |
Means an accounting restatement to correct the Company’s material noncompliance with any financial reporting requirement under securities laws, including restatements that correct an error in previously issued financial statements (a) that is material to the previously issued financial statements or (b) that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period. |
12. |
Three-Year Period |
Means, with respect to a Restatement, the three completed fiscal years immediately preceding the date that the Board, a committee of the Board, or the officer or officers of the Company authorized to take such action if Board action is not required, concludes, or reasonably should have concluded, that the Company is required to prepare such Restatement, or, if earlier, the date on which a court, regulator or other legally authorized body directs the Company to prepare such Restatement. The “Three-Year Period” also includes any transition period (that results from a change in the Company’s fiscal year) within or immediately following the three completed fiscal years identified in the preceding sentence. However, a transition period between the last day of the Company’s previous fiscal year end and the first day of its new fiscal year that comprises a period of nine to 12 months shall be deemed a completed fiscal year. |
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1. |
Compensation Subject to Policy |
This Policy shall apply to Incentive-Based Compensation received on or after the Effective Date. For purposes of this Policy, the date on which Incentive-Based Compensation is “received” shall be determined under the Applicable Rules, which generally provide that Incentive-Based Compensation is “received” in the Company’s fiscal period during which the relevant Financial Reporting Measure is attained or satisfied, without regard to whether the grant, vesting or payment of the Incentive-Based Compensation occurs after the end of that period.
2. |
Recovery of Compensation |
In the event that the Company is required to prepare a Restatement, the Company shall recover, reasonably promptly, the portion of any Incentive-Based Compensation that is Erroneously Awarded Compensation, unless the Committee has determined that recovery would be Impracticable.
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Recovery shall be required in accordance with the preceding sentence regardless of whether the applicable Officer engaged in misconduct or otherwise caused or contributed to the requirement for the Restatement and regardless of whether or when restated financial statements are filed by the Company. For clarity, the recovery of Erroneously Awarded Compensation under this Policy will not give rise to any person’s right to voluntarily terminate employment for “good reason,” or due to a “constructive termination” (or any similar term of like effect) under any plan, program or policy of or agreement with the Company or any of its affiliates.
3. |
Manner of Recovery; Limitation on Duplicative Recovery |
The Committee shall, in its sole discretion, determine the manner of recovery of any Erroneously Awarded Compensation, which may include, without limitation, reduction or cancellation by the Company or an affiliate of the Company of Incentive-Based Compensation or Erroneously Awarded Compensation, reimbursement or repayment by any person subject to this Policy of the Erroneously Awarded Compensation, and, to the extent permitted by law, an offset of the Erroneously Awarded Compensation against other compensation payable by the Company or an affiliate of the Company to such person. Notwithstanding the foregoing, unless otherwise prohibited by the Applicable Rules, to the extent this Policy provides for recovery of Erroneously Awarded Compensation already recovered by the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 or Other Recovery Arrangements, the amount of Erroneously Awarded Compensation already recovered by the Company from the recipient of such Erroneously Awarded Compensation may be credited to the amount of Erroneously Awarded Compensation required to be recovered pursuant to this Policy from such person.
4. |
Administration |
This Policy shall be administered, interpreted and construed by the Committee, which is authorized to make all determinations necessary, appropriate or advisable for such purpose. The Board of Directors of the Company (the “Board”) may re-vest in itself the authority to administer, interpret and construe this Policy in accordance with applicable law, and in such event references herein to the “Committee” shall be deemed to be references to the Board. Subject to any permitted review by the applicable national securities exchange or association pursuant to the Applicable Rules, all determinations and decisions made by the Committee pursuant to the provisions of this Policy shall be final, conclusive and binding on all persons, including the Company and its affiliates, equityholders and employees. The Committee may delegate administrative duties with respect to this Policy to one or more directors or employees of the Company, as permitted under applicable law, including any Applicable Rules.
5. |
Interpretation |
This Policy will be interpreted and applied in a manner that is consistent with the requirements of the Applicable Rules, and to the extent this Policy is inconsistent with such Applicable Rules, it shall be deemed amended to the minimum extent necessary to ensure compliance therewith.
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6. |
No Indemnification; No Liability |
The Company shall not indemnify or insure any person against the loss of any Erroneously Awarded Compensation pursuant to this Policy, nor shall the Company directly or indirectly pay or reimburse any person for any premiums for third-party insurance policies that such person may elect to purchase to fund such person’s potential obligations under this Policy. None of the Company, an affiliate of the Company or any member of the Committee or the Board shall have any liability to any person as a result of actions taken under this Policy.
7. |
Application; Enforceability |
Except as otherwise determined by the Committee or the Board, the adoption of this Policy does not limit, and is intended to apply in addition to, any other clawback, recoupment, forfeiture or similar policies or provisions of the Company or its affiliates, including any such policies or provisions of such effect contained in any employment agreement, bonus plan, incentive plan, equity-based plan or award agreement thereunder or similar plan, program or agreement of the Company or an affiliate or required under applicable law (the “Other Recovery Arrangements”). The remedy specified in this Policy shall not be exclusive and shall be in addition to every other right or remedy at law or in equity that may be available to the Company or an affiliate of the Company.
8. |
Severability |
The provisions in this Policy are intended to be applied to the fullest extent of the law; provided, however, to the extent that any provision of this Policy is found to be unenforceable or invalid under any applicable law, such provision will be applied to the maximum extent permitted and shall automatically be deemed amended in a manner consistent with its objectives to the extent necessary to conform to any limitations required under applicable law.
9. |
Amendment and Termination |
The Board or the Committee may amend, modify or terminate this Policy in whole or in part at any time and from time to time in its sole discretion. This Policy will terminate automatically when the Company does not have a class of securities listed on a national securities exchange or association.
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